The plaintiffs in this case, Bruce and Maria Bullen (the Bullens), and Richard A. Joel (Joel), filed a complaint seeking under G.L. c. 40A, §17 judicial review of a decision (Decision) of the Zoning Board of Appeals (ZBA) of the Town of Edgartown, whose members are defendants. The challenged Decision of the ZBA was dated September 19, 2007 and filed with the Town Clerk on September 21, 2007. In the Decision, the ZBA upheld the decision of the Edgartown Building Inspector, also a defendant, to deny a request by the Plaintiffs to enforce Edgartown Zoning By-law § 14.1(e)(5) (Article 14) against Defendant Phaidra Velarde (Velarde).
Velarde filed a motion to dismiss on January 31, 2008, arguing, inter alia, that the plaintiffs lack standing; that the action is barred by the statute of limitations in G. L. c. 249, § 4; and that under G. L. c. 240, § 14A, the Land Court lacks jurisdiction to hear a challenge to a regulation enacted by the Marthas Vineyard Commission (MVC), or pursuant to the Marthas Vineyard Commission Act, St. 1977, c. 831 (the MVC Act). [Note 1] Plaintiffs filed a motion to extend their time for filing an opposition to the Velardes motion to dismiss, which the court allowed, ruling that the motion to dismiss would be treated as a motion for summary judgment, and allowing the plaintiffs to file an opposition and cross-motion. On April 18, 2008, the Plaintiffs filed an opposition and cross-moved for summary judgment on the issue of standing.
The cross-motions for summary judgment came on for hearing. After hearing the arguments of counsel, the court requested supplemental briefs considering the effect of the decision of the Appeals Court in Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008). The court has received all supplemental briefing.
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The following facts are supported by the record and appear without material dispute.
Velarde owns property known as 23 Mattakesett Bay Road, in Edgartown, County of Dukes County, Massachusetts (Locus), and shown as Lot 339 on a plan recorded with the Dukes County Registry of the Land Court number 8761-23. Joel owns property on Mattakesett Bay Road and is a direct abutter of the Locus. The Bullens own property on Edgartown Bay Road, and are not direct abutters, but are within 300 feet of the property line.
The Joel parcel is served by a septic system and is served by town water, not an on-site well. The Bullen parcel has an on-site well. The Velarde parcel is, or will be, served by town water.
Velarde applied on May 9, 2006 for a permit to construct a septic system from the Edgartown Board of Health (BOH). To obtain the permit, it would be necessary to obtain variances from setbacks from existing septic systems and existing wells.
The Velarde septic system is within 200 feet of the septic system on the Joel parcel, and is within 200 feet of a salt marsh. The Velarde septic system is within 200 feet of three other septic systems, and one other well. There is no septic system or well within 100 feet of the Velarde septic system.
Joel and the Bullens (collectively, Plaintiffs) each received notice of the public hearing before the BOH, scheduled for June 1, 2006. Prior to the June 1, 2006 meeting, Joel sent a letter to the BOH, dated May 24, 2006, in which he objected to the installation of a septic system on the Locus. Despite having received notice, neither Joel nor the Bullens attended the June 1, 2006 public meeting of the BOH.
The BOH held hearing on Velardes application on June 1, 2006, on July 13, 2006, and on September 14, 2006. The BOH approved Velardes application on September 14, 2006, on the understanding that Velarde would restrict the property with certain real property covenants. These covenants were before the BOH for review at a meeting on January 25, 2007, and were filed for registration, noted on Velardes certificate of title no. 11865, Book 64, Page 11, on February 6, 2007.
On March 20, 2007, Velarde applied for a building permit, which issued on April 3, 2007. Neither Velarde nor the Town of Edgartown issued notice to the Plaintiffs that Velarde sought a building permit, or that the Building Inspector issued a permit. Sometime prior to April 30, 2007, Velarde began the work of constructing a single family home on the Locus.
Maria Bullen met with BOH Agent Matt Poole (Poole) on May 4, 2007, and Poole advised Maria Bullen that a septic permit had issued for the Locus. On May 24, 2007, the Bullens, pursuant to G. L. c. 40A, § 7, served a demand upon the Edgartown Building Inspector to enforce the Zoning By-law against Velarde (Enforcement Request). By letter to the Building Inspector, Joel joined the Enforcement Request, having first become aware of the construction on the Locus on May 18, 2007.
The Building Inspector denied the Enforcement Request on August 2, 2007. The Plaintiffs appealed the denial to the Edgartown Zoning Board of Appeals (ZBA) on August 7, 2007. On September 19, 2007, after hearing, the ZBA upheld the denial. This appeal followed, and the complaint was filed with the Land Court on October 5, 2007.
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Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law. Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). The moving party bears the burden of affirmatively showing that there is no triable issue of fact. Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and an adverse party may not manufacture disputes by conclusory factual assertions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.
The court now decides the pending motions. After review of the summary judgment record, including all of the facts properly before the court pursuant to Mass. R. Civ. P. 56(c), and upon consideration of the arguments presented at the hearing, the court decides that the uncontested facts and the governing law call for allowance of Velardes motion for summary judgment, and denial of the cross-motion of the Plaintiffs.
I. THE SEPTIC PERMIT
Plaintiffs deny that the septic system complies with the State Environmental Code, 310 Code Mass. Regs. § 15.000 (Title 5). They claim there is a significant likelihood that it will fail within the next five years, in a manner that will harm Joel. The plaintiffs dispute that the system is properly constructed and dispute that the system will function properly. The Plaintiffs further assert that Velarde was not entitled to a septic permit under Article 14 of the Edgartown By-law, and that the BOH issued the permit in error. The Velarde septic system is located within 200 feet of a salt marsh. Plaintiffs claim a salt marsh is a salt water body and that, to locate a septic system within 200 feet of one, a variance is required under Article 14. Velarde argues that she did not need a variance because a salt marsh is not a salt water body under Article 14, or that the BOH, by granting the permit, implicitly granted the variance.
The question whether the salt marsh is a salt water body under the Edgartown Zoning By-law came up at the BOH meeting on July 13, 2006, and again on September 14, 2006. In a memorandum dated July 14, 2006, Velardes counsel opined that the definition of salt water body did not include a salt marsh. There is no evidence in the record which fairly would support the inference that the BOH read the July 14 memorandum, much less relied on it. Nonetheless, the minutes of the September 14, 2006 meeting indicate that the Conservation Agent opined that a salt marsh was not a salt water body, and all parties agree that the BOH adopted this position. Notwithstanding the forgoing, the court in this litigation is unable to reach the interpretive question of Article 14 of the Edgartown by-law, because the Plaintiffs case is not properly before the court.
1. The Plaintiffs Cannot Use G. L. c. 240, § 14A to Seek Review of the Edgartown Board of Healths Decision to Issue a Septic Permit to Velarde.
Count II of the Plaintiffs Amended Complaint seeks review pursuant to G. L. c. 240, § 14A. Plaintiffs allege that Article 14.1(e)(5) of the zoning by-law of Edgartown precludes Velardes proposed use, enjoyment, improvement or development of the Locus by the construction of the proposed sanitary disposal facility at issue in this case. The argument of the Plaintiffs is, in substance, that the court should make a determination that the term salt water body in Article 14.1(e)(5) includes a salt marsh, and based on that ruling, go on the decide that Velarde required a variance which she did not ask for, and did not receive. Velarde argues that, although phrased as a request for an interpretation of the by-law, what Plaintiffs have put before the court is in fact a request that this court review a permit issued pursuant to the by-law.
Section 14A of G. L. c. 240 authorizes the court to interpret a zoning [by-law]; that statute does not authorize the court to render judgment as to the validity of decisions of a board acting under, and interpreting that same [by-law]. Thyng v. City of Quincy, Land Court Misc. Case No. 303127 (August 31, 2007) (Piper, J.) (order dismissing remaining counts) (citing Whittinsville Retirement Socy, Inc. v. Town of Northbridge, 394 Mass. 757 (1985)). On the surface, the Plaintiffs complaint asks the court to interpret relevant (dispositive, even) language in the Edgartown by-law. The Plaintiffs cannot, however, convert an appeal from a [BOH] decision, barred by the statute [of limitations] into a viable declaratory judgment case simply because the court, to make declaration, would need to interpret and apply the words of the [by-law]. Thyng v. City of Quincy, Land Court Misc. Case No. 303127, *10 (August 31, 2007) (Piper, J.) (order dismissing remaining counts).
2. Plaintiffs Cannot Use G. L. c. 240, § 14A to Review an Enactment of the Marthas Vineyard Commission.
In 1976, the MVC inserted Article 14.1 into the Edgartown by-law pursuant to its authority under its enabling legislation. [Note 2] See Hines v. Planning Bd. of Edgartown, 24 Mass. App. Ct. 344 , 346 (1987). Regulations of the MVC may be of the type adopted by any city or town under G. L. c. 40, § 8C (conservation commissions); G. L. c. 40A (zoning); G. L. c. 41, §§ 81E-81H (subdivision control); G. L. c. 111, § 27B (regional health boards); and G. L. c. 131, §§ 40, 40A (floodplains and inland wetlands). See Woods Hole, Marthas Vineyard & Nantucket Steamship Auth. v. Marthas Vineyard Commn, 380 Mass. 785 , 802 (1980) (drawing from St. 1977, c. 831, § 3). Regulations brought upon a town pursuant to section 10 of the MVC Act are to be incorporated into the official ordinances, by-laws and maps of the municipality and administered by the municipality as if they were part of its development ordinances and by-laws. McCarthy v. Planning Bd. of Edgartown, 381 Mass. 86 , 88 (1980). Marthas Vineyard Commission regulations are not exclusively characterized as zoning laws. Id.
In holding that the grandfathering protections of G. L. c. 40A, § 6 do not apply to MVC regulations, notwithstanding their physical presence in the text of the zoning by-law, the Supreme Judicial Court of Massachusetts (SJC) reasoned that the MVC Act is the polar opposite from local enactments under the Zoning Act. See Island Properties, Inc. v. Marthas Vineyard Commn, 372 Mass. 216 , 228 n. 23 (1977); see also Kitras v. Aquinnah, 453 Mass. 245 , 257-58 (2009) (relying on Island Properties). It follows that regulations, compelled by commissions guidelines, which are nominally incorporated into the towns ordinances and by-laws to be administered by the town as if part of the towns development enactments are not zoning ordinances or by-laws subsequently passed by municipalities as contemplated by G. L. c. 40A. Island Properties, 372 Mass. at 228 n. 23. Recently, the SJC announced that MVC acts designating land as a district of critical planning concern (DCPC), see MVC Act, § 8, are not reviewable under G. L. c. 240, § 14A. See Kitras, 453 Mass. at 258 (We conclude that G. L. c. 240, § 14A, enables a property owner to challenge the validity and scope of a municipal ordinance, by-law, or regulation; it does not serve as a mechanism by which a landowner can challenge the designation of a DCPC.). The Kitras decision relied on the reasoning in Island Properties, namely, that MVC regulations do not find their source in G. L. c. 40A, and are thus not subject to the statutes meant to provide relief from the application of G. L. c. 40A. Kitras, 453 Mass. at 257-58. The MVC Act is intended not only to bring island-wide considerations to the six towns of Marthas Vineyard, but also to bring Statewide considerations onto the island. Kitras, 453 Mass. at 258. By-laws passed pursuant to 40A are of local concern and local impact. See Island Properties, 372 Mass. at 229 (It might be thought a perverse anomaly if these regional purposes could be thwarted . . . by freezing and preserving for seven years preexisting local by-laws with narrow orientation.). Section 14A of G. L. c. 240 is designed to review by-laws and ordinances of local concern and local impact, but is not designed to review regulations of regional or Statewide impact. [Note 3]
It would be inconsistent with the ruling in Kitras (and with Island Properties and its progeny) if G. L. c. 240, § 14A which is not available to review the designation of a DCPC could be used to challenge a regulation enacted pursuant to a DCPC. Designating land as a DCPC would be a hollow exercise without adopting regulations for development within the district. Indeed, the MVCs authority to adopt regulations binding on the towns is limited to areas formally designated as DCPCs. See MVC Act, § 3. Using G. L. c. 240, § 14A to review a regulation adopted pursuant to a DCPC suffers the same problems as reviewing the designation itself: it requires the application of a statute designed for by-laws of local impact to a regulation of regional or Statewide impact.
3. Plaintiffs Cannot Use G. L. c. 40A, § 17 to Seek Review of the Decision by the Edgartown Board of Health to Grant Velarde a Septic Permit.
Section 8 of G. L. c. 40A allows for an appeal to the ZBA by any person . . . aggrieved by an order or decision of the inspector of buildings, . . . in violation of any provision of this chapter or any ordinance or by-law adopted thereunder. The Plaintiffs appeal the decision of the Edgartown Building Inspector not to revoke Velardes building permit based on an alleged deficiency in the septic permit issued by the BOH. Article 14.1, despite its location in the zoning by-laws of the town, was not adopted pursuant to G. L. c. 40A, but was inserted by the MVC pursuant to a DCPC. The MVC may adopt the type of regulations which may be adopted by a town pursuant to, inter alia, G. L. c. 111, § 27B, as it pertains to regional boards of health. See MVC Act, § 3. A regional board of health shall have all the powers and shall perform all the duties conferred upon, or exercised by, the boards of health and health departments of the constituent municipalities under any law or ordinance pertaining thereto[.] G. L. c. 111, § 27B. Thus, despite being nominally incorporated into the towns zoning by-laws, see Island Properties, Inc., 372 Mass. at 228 n. 23, the provisions of Article 14.1 which relate to septic systems are not zoning under G. L. c. 40A, and if analogous to any local enactment (despite the Statewide scope of the MVC Act, see supra Part I.2 ) they are analogous to BOH regulations, not zoning by-laws.
An appeal under G. L. c. 40A, § 8 is only proper when the building inspectors actions are alleged to violate either G. L. c. 40A, or a local zoning by-law adopted pursuant to G. L. c. 40A. Here, the Building Inspector was asked to revoke a building permit on the basis that it caused injury by violating a regulation adopted by the MVC, which was enacted pursuant not to G. L. c. 40A, but to St. 1976, c. 637, § 11. When a building inspector does not act under the provisions of G. L. c. 40A, or of some local zoning provision, his actions are not appealable to the local zoning board of appeals. See P & D Service Co. v. Dedham Z.B.A., 359 Mass. 96 , 104 (1971); see also Balcam v. Town of Higham, 41 Mass. App. Ct. 260 , 265 (1996) (holding no appeal of wetlands by-law violation could be made under G. L. c. 40A). The avenues of appeal for violations of various by-laws and State laws are discrete. Id.
In P & D Service Co., the Dedham by-law allowed the building inspector to issue a building permit only if the applicant first had obtained a sewer certificate from the board of health, stating the applicant could either tie into the public sewer, or had obtained permission to construct a septic system. P & D Service Co., 359 Mass. at 100-01. The plaintiff in that case properly obtained building permits after obtaining a certificate from the board of health, which recited permission to tie into the public sewer system. Id. at 99. The proposed buildings complied with the building code and the proposed uses complied with the zoning by-law. Id. After granting the building permits, the building inspector revoked the permits on the basis that the selectmen (who acted as sewer commissioners) thought there was a potential capacity problem with the sewer tie-in. Id. The plaintiff appealed the building inspectors decision to the zoning board of appeals, and the zoning board upheld the building inspectors revocation. Id. at 99-100. The plaintiff appealed the decision of the zoning board to the superior court pursuant to G. L. c. 40A, § 21 (the former version of 40A, § 17). P & D Service Co., 359 Mass. at 104. The SJC held that the case was not properly before them as an appeal under G. L. c. 40A, because Neither the question of the adequacy of the towns common sewer nor the question of the applicability of, or compliance with, the [State] Sanitary Code arose under the towns zoning by-law. Id.
P & D Service Co. controls the case at bar. At no point in deciding whether to revoke Velardes building permit did the Building Inspector consider an issue that arose under the towns zoning by-law. P & D Service, Co., 359 Mass. at 104. Likewise, the Edgartown ZBA never considered a local zoning issue when it heard the appeal from the Building Inspectors refusal. The MVC vested the ability to grant variances from the provisions of Article 14.1(e)(4)-(8) exclusively in the BOH. See Article 14.1(e)(9). The authority to review the decision-making of the BOH on an issue of statewide concern does not fall to the local zoning board of appeals. See, e.g. Walpole Country Club v. Sharon Bd. of Health, 72 Mass. App. Ct. 913 (2008) (when board of health acts pursuant to Title 5, route of appeal is to Superior Court pursuant to G. L. c. 249, § 4); Robinson v. Chatham Bd. of Health, 58 Mass. App. Ct. 394 , n. 4 (2003) (declaratory relief pursuant to G. L. c. 231A not available to review variance granted by board of health, proper appeal was under G. L. c. 249, § 4). Plaintiffs proper avenue for relief was an action in the nature of certiorari pursuant to G. L. c. 249, § 4, and as such, their appeal under G. L. c. 40A is not properly before the court.
4. Plaintiffs Appeal Is Not Timely.
An action in the nature of certiorari must be taken within sixty days of the proceeding of which the plaintiffs complain. See G. L. c. 249, § 4. Here, the Edgartown BOH granted a septic permit to Velarde on September 14, 2006. The plaintiffs had sixty days from September 14, 2006 to take their appeal. No appeal was taken.
It is undisputed in the record that both the Bullen and Joel plaintiffs received actual notice of the proceedings before the BOH. Joel filed a letter objecting to the issuance of a permit. Plaintiffs had a fair opportunity to appeal from the issuance of the permit, [they were] not entitled to forgo that remedy in favor of a subsequent request for enforcement and appeal therefrom. See Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 855 (2008).
The decision in Gallivan, on which the court requested and received supplemental briefing from counsel, implicates the same concerns present here. In Gallivan, the plaintiff had actual notice of a building permit, and was able to determine from the face of the permit that a zoning violation would result. Here, the Plaintiffs had actual notice that Velarde had applied for a septic permit, and at least Joel was aware that a variance would be required before the permit could issue. See Def.s Mot. Summ. J., Ex. E. In Gallivan, the Appeals Court reasoned that allowing a plaintiff armed with knowledge of a zoning violation to sit on her rights while the permit holder incurs substantial expense by undertaking authorized construction, only to have the aggrieved person spring into action sometime in the next six years makes little sense, and is unfair. Gallivan, 71 Mass. App. Ct. at 857-58. Here, allowing the plaintiffs, with actual knowledge of the application for a variance, to forgo their right of certiorari and rely on a zoning enforcement action six months later, after Velarde had obtained further permitting and commenced construction, implicates the same unfairness that Gallivan remedies. The plaintiffs therefore had no right to an enforcement action, and having failed to take an appeal from the BOH decision within sixty days, are without additional remedy.
II. PLAINTIFFS LACK STANDING UNDER G.L. c. 40A, § 17
Setting aside for a moment the forgoing, I consider whether, had Plaintiffs appeal through the zoning act been proper, they have standing as persons aggrieved. Plaintiffs offer three areas in which they say they suffer aggrievement: diminution of view, diminution of site value, and drainage impacts. In addition to having their action barred because it was not taken timely, I conclude that the Plaintiffs lack the requisite standing to pursue an appeal under G. L. c. 40A, § 17.
Under G. L. c. 40A, § 17, only persons aggrieved have standing to appeal a decision of a zoning board of appeals. If a plaintiffs legal or property rights will (or likely will) be infringed by a boards action, then he qualifies as a person aggrieved. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grill, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term person aggrieved is not to be narrowly construed, the plaintiffs injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be special and different from the concerns of the rest of the community); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest). In addition, the injury claimed by the plaintiff also must be legitimately within the scope of the zoning laws. Marashlian, 421 Mass. at 722.
There is an initial presumption that an individual who is entitled to notice of board hearings is a person aggrieved, [Note 4] although that presumption will fall away if adequately challenged, the question then to be decided on all the evidence. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-04 (1957). The plaintiff in such a circumstance must provide facts from which the court may find the aggrievement necessary to constitute standing. Standerwick, 447 Mass. at 33-35; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To establish standing a plaintiff must put forth credible evidence to substantiate his allegations. Marashlian, 421 Mass. at 721. While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the boards action. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). To meet the standard of credible evidence, the evidence offered must provide specific factual support for each of the claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Butler, supra, at 441. Conjecture, personal opinion, and hypothesis are insufficient. Butler, supra, at 441.
1. The Standing of the Plaintiffs Has Been Challenged By Evidence, Causing the Initial Presumption to Recede.
Velarde introduced evidence in the form of an affidavit from her engineer, Richard Barbini, that (1) the Velardes septic tank is properly designed and installed, and will not cause injury to the neighboring parcels, and (2) that surface water from the Velarde parcel will not have a negative impact on either the Bullen or the Joel parcel. This evidence is sufficient to cause the Plaintiffs presumption of standing to recede, the question now to be decided on all the evidence. See Standerwick, 447 Mass. at 34-35.
2. Plaintiffs Lack Standing Based on Alleged Impairment of View.
Where the zoning by-law or ordinance in question creates or defines a protected interest in view, then impairment of that protected interest may be a basis for aggrievement. See Martin v. Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146-47 (2001) (A defined protected interest may impart standing to a person whose impaired interest falls within that definition.); Sheehan v. Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 56 (2005) (holding by-law created additional protected . . . harbor view . . . interests sufficient for standing); Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 689 (1994) ([P]laintiffs expressed concern with visual impact might be dismissed as aesthetic sensitivity insufficient to impart standing, . . . were it not for the specific provisions of the Plymouth zoning by-law.). Unlike the by-law in Plymouth considered in Sheehan and Monks, the Edgartown by-law has no special provision making water views a protected zoning interest. [Note 5]
Plaintiffs argue that standing is available based on obstruction of view, regardless of the zoning interests at stake. This may be true on some set of facts, but the cases on which Plaintiffs rely are inapposite. In DiMaio v. Zoning Bd. of Appeals of Saugus, 13 LCR 359 (2005) (Misc. Case No. 282578) (Piper, J.), the Land Court stated that Loss of view may be a basis for standing in certain cases, but generally only if it is a protected interest under a specific zoning by-law, id. at 363, and went on to hold that view was not a protected interest in the Saugus By-Law, and that the plaintiff did not have standing based on obstruction of view. In Hickox v. Fairhaven Bd. of Appeals, 13 LCR 188 (2005) (Misc. Case No. 268618) (Piper, J.), the Land Court stated that A property owners view is generally not an interest protected by zoning[,] id. at 191, and that [l]oss of view may be a basis for standing, however, if it is a protected interest under a specific zoning by-law. Id. The court went on to deny standing, holding, The water view from the [plaintiffs] property is not, by itself, a protected interest under the Fairhaven Zoning By-law[,] id., and Even assuming, arguendo, that this particular by-law established views as a protected interest, the loss that [plaintiff] complains of is so de minimis that it could not provide a basis for standing. Id. (emphasis in original). Only in Nixon v. Zoning Bd. of Appeals of Ipswich, 5 LCR 121 (1997) (Misc. Case No. 166957) (Kilborn, J.), does the Land Court deliver a holding that would be helpful to the Plaintiffs here, ruling, [b]ased on Tsagronis, I find defendants were persons aggrieved by their loss of view. Id. at 124. However, Nixon was decided before the SJC decided Standerwick, which clarified the holding in Tsagronis, [Note 6] and before the SJC decided Martin, a seminal case for impairment of view. Without the benefit of these two cases, Nixon is now of little persuasive value on this point.
Plaintiffs cite to McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930 (2004) (rescript) for the proposition that diminution in view should confer standing. In McGee, the plaintiffs had standing to challenge the removal of a partial story on a residential building, and its replacement with a full story and full one-floor addition occasioned by the grant of a variance from floor area ratio requirements. McGee, 62 Mass. App. Ct. at 930. The impairment of the plaintiffs view was tied to the zoning relief received in that the variance allowed a larger building, and a larger building has a larger capacity to block the views of neighboring buildings. In this way, the McGee plaintiffs suffered injury to their legal rights. Marashlian, 421 Mass. at 723. Here, the claimed injuryimpairment of viewdoes not flow from the alleged zoning violation, which has to do with the siting of a septic tank. Plaintiffs would be on steadier footing if the injurious impairment of view was caused by zoning relief allowing a building too high, or allowing construction on an undersized lot. Concerns about density might be triggered if Velarde had received a permit to go forward with a project that would authorize increased density in a district where existing development is already more dense than the applicable zoning regulations allow, Standerwick, 447 Mass. at 32. In such a case, the interest protected by zoning might be said to be tethered to the claimed basis for aggrievement. Id. The facts clearly demonstrate, however, and no argument is made to the contrary, that Velarde required no zoning relief (other than the BOH waivers) to construct the building on her lot.
3. Plaintiffs Lack Standing as to Alleged Diminution in Site Value.
To untether a claimed diminution in real estate values from an interest the zoning scheme seeks to protect would permit any abutter who claims that any change in property use would diminish the value of property to obtain standing to challenge a zoning decision. Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32 (2006). [Note 7] Here, the zoning violation complained of is the placement of the septic tank within 200 feet of an alleged salt water body. There is only a tenuous connection between the alleged zoning violation and the diminution of views, and the connection is even farther removed between the placement of the septic tank and the diminution of value.
The argument that but-for the placement of the septic tank, there would be no structure at all on the locus is too speculative to provide a basis for standing. Likewise, Plaintiffs cannot tether their alleged diminution in value to an impairment of their view, because loss of view is, by itself, an unrecognized ground for aggrievement in a zoning appeal. It would be an unfair backdoor method of proving aggrievement if diminution of value attributable to a harm not within the sphere of zoning protection were an acceptable basis for showing zoning appeal aggrievement. [Note 8] The corollary to the rule that abutters have a rebuttable presumption of standing is that at least occasionally, an abutter will lack standing. See Tsagronis, 33 Mass. App. Ct. at 335 (Abrams, J. dissenting) (court anticipated that there would be circumstances in which even direct abutters would not have standing as parties aggrieved). If the plaintiffs in this case have standing, it is hard to imagine a situation where an abutter would not.
4. Plaintiffs Lack Standing as to Alleged Deficiencies in the Velarde Septic System.
Plaintiffs argue: (1) that the septic tank is not properly installed, and does not comply with Title 5; (2) that the septic system will experience a rapid failure as a result of overuse; and (3) that, at some point, all septic systems eventually fail.
Plaintiffs argue that the septic system does not comply with Title 5 because the vertical separation distance between the bottom of the leaching field and the high groundwater elevation is only 2.4 feet, and not the five feet mandated by Title 5. See 310 Code Mass. Regs. § 15.212. There is no dispute that the bottom of the leaching field, is 5.1 feet above a point 1.9 feet above sea level. See Pl.s Cross Mot. Summ. J., Ex. 13. The two engineers, Mr. Barbini for Velarde and Mr. Quintal for the Plaintiffs, arrive at different conclusions as to the elevation of the water table. Mr. Barbini concludes that high groundwater elevation is 1.9 feet above sea level, which results in a vertical separation distance of 5.1 feet, complying with Title 5. Mr. Quintal concludes high groundwater elevation is 4.6 feet above sea level, resulting in a vertical separation distance of 2.4 feet.
This discrepancy, according to the plaintiffs, is a result of the Mr. Barbini failing to perform a Frimpter adjustment when determining the groundwater elevation. Mr. Barbini disputes that a Frimpter adjustment was proper, arguing that the adjustments purpose is to compensate for elevation tests performed during those months of the year when the groundwater elevation is low, and that he did tested during April, when groundwater is seasonally high.
Title 5 expressly directs when a Frimpter adjustment may be applied. See 310 Code Mass. Regs. § 15.103(3)(b). Title 5 requires the Munsell soil color system be used to determine high groundwater elevation. 310 Code Mass. Regs. § 15.103(3). The Munsell soil color system will be sufficient if there are redoximorphic features in the soil. Id. When the soil evaluator does not observe redoximorphic features, Title 5 directs him to perform one of four listed methods in addition to the Munsell system. [Note 9] See 310 Code Mass. Regs. § 15.103(3)(b). Mr. Barbini did not observe redoximorphic features when testing the soil on the Velarde parcel, and Mr. Quintal does not dispute that Mr. Barbini employed one of the mandated additional methods to supplement the Munsell system. Specifically, Mr. Barbini made an observation of the actual water table in April, which is a period of high water table. Mr. Quintal claims that it is standard practice in the hydrology engineering industry to employ a calculation known as a Frimpter adjustment to derive the Baseline contemplated by 310 Code Mass. Regs. § 15.212(1). [Note 10] See Quintal Aff. ¶ 10. It may be that the Frimpter adjustment is a standard calculation that can be used to determine groundwater elevation. Title 5, however, does not require the Frimpter adjustment when the actual groundwater elevation is observed during a period of high water table, and Mr. Quintal has not offered any reason why the Frimpter adjustment yields a result more accurate than actual observation. Mr. Quintal offers no reason (other than failure to perform the Frimpter adjustment) that Mr. Barbini was wrong when he determined the groundwater elevation to be 1.9 feet above sea level.
This is not, however, a material fact in dispute requiring trial. The fact that the Velarde septic allegedly violates Section 15.212 of Title 5 is insufficient to confer standing: even if true, it is not enough simply to argue that the Velarde septic system is noncompliant. The Plaintiffs must allege some injury that is special and different from the concerns of the rest of the community. See Standerwick, 447 Mass. at 451. General concerns about pollution, or nitrogen and phosphorus loading into water resources, are not particularized enough to confer standing. See Higby/Fulton v. Bd. of Health of Tisbury, 70 Mass. App. Ct. 848 (2007) (standing for an appeal pursuant to G. L. c. 249, § 4). The court is unaware of, and neither Plaintiffs nor Defendants have offered, any Massachusetts appellate decision discussing whether a violation of Title 5 confers standing under G. L. c. 40A, § 17. [Note 11] Title 5 is not a local zoning by-law, it is a regulation of Statewide application. It may be the case that a plaintiff challenging the construction of a dwelling on an undersized lot can show aggrievement by arguing the additional septic system will cause injury. In that case, however, the issue is not the septic system but density, which is a proper zoning concern. See, e.g. Bertrand v. Bd. of Appeals of Bourne, 58 Mass. App. Ct. 912 (2003) (rescript) (listing concern about septic systems as one basis for standing where zoning relief challenged related to density). Here, the Plaintiffs claim standing based directly on an alleged violation of Title 5, grounds that are not legitimately within the scope of the zoning laws. See Marashlian, 421 Mass. at 722.
The Plaintiffs argument that the septic tank might fail, as a result of improper use, overuse, or improper maintenance, does not confer standing to take a zoning appeal because it is too speculative. See Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 545-46. In Sweenie, the plaintiffs challenged a special permit allowing the installation of underground storage tanks for gasoline by arguing that [T]here could be spillage occurring during the removal or the installation of the new tanks, and that, despite state-regulated procedure for the removal and replacement of underground fuel storage tanks, an accident nonetheless could occur. Id. at 545 n. 14. The court rejected this reasoning as too speculative. Id. at 545-46. Here, the plaintiffs make essentially the same argument rejected in Sweenie, and it must similarly be rejected. The argument of the plaintiffs, however, goes much further than alleging improperly constructed or overused systems. Plaintiffs state It is universally accepted within the septic engineering industry that all septic systems eventually fail in a manner that leads to breakout, i.e., sewage from the septic system breaking out to the surface. . .
To confer standing, the injury complained of must be special and different from the injury the action will cause the community at large. Butler, 63 Mass. App. Ct. at 440. If it is true that all septic systems eventually result in sewage breaking out to the surface, as the Plaintiffs contend, then it is difficult to see how their alleged injury is special or different than that of the community at large. Presumably, every property owner would then have standing to challenge the construction of any septic system within the municipality. Clearly this cannot be so. The mere fact that a septic system is to be constructed, without more, is insufficient to confer standing, because it is not demonstrative of a particularized harm.
5. Plaintiffs Lack Standing as to Alleged Drainage Impacts.
Plaintiffs make two arguments as to drainage impacts: (1) that the construction on the locus will result in an increase in surface water runoff from locus onto the property of the plaintiffs, and (2) that if the septic tank installed on the locus fails, it would contaminate the property of the Plaintiffs.
The surface water argument fails because it alleges only increased flow and does not allege any deleterious effects or impacts on the land of the Plaintiffs (except to the extent that the argument is coupled with the allegations that the Velarde septic will fail. This union is discussed infra.). Requiring an allegation of harm, rather than mere impact, is not formalism. Constructing an impervious surface, like a house, on any vacant lot will have some impact on where surface water flows. To confer standing, however, a plaintiff must make specific and nonspeculative allegations of actual harm to a legal interest. Cf. Cohen v. Plymouth Zoning Bd. of Appeals, 35 Mass. App. Ct. 619 , 623 (1993) (requiring more than allegation of increased traffic to show specific injury); Caso v. Zoning Bd. of Appeals of Natick, 7 LCR 293 , 296 (1999) (Misc. Case No. 236715) (Green, J.) (Almost every project produces an increase of some magnitude in the traffic on the abutting street; for an increase in traffic to constitute a source of aggrievement a plaintiff in a zoning appeal must show that the increase will adversely affect a protected property interest.); see also Maloof v. Wrentham Planning Bd., 12 LCR 359 , 364 (2004) (Misc. Case No. 290639) (Long, J.) (discussing Caso).
In the recent decision in Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 (2009), the Supreme Judicial Court affirmed the ruling of trial judge that plaintiffs had standing based on allegations that increased surface water flow could result in flooding and could harm plaintiffs septic system and well. Id. at 524. [Note 12] Here, the plaintiffs have not connected the alleged increased surface water flow to flooding, or any other specific injury resulting from the flow of surface water.
Instead, Plaintiffs set out to tether the alleged defects in the septic design to the increased surface water runoff. The result, argue the Plaintiffs, is that if the Velarde septic tank eventually fails, and if that failure results in sewage from the system breaking out onto the surface of the leaching field, and if the sewage is present on the surface during a rain event, then there is a fifty percent chance that the sewage will flow onto the Joel parcel. See Quintal Aff. at ¶ 44. This injury requires a confluence of three independent eventsseptic failure, break out, and a simultaneous rain eventto occur, and is by its nature as matter of law too speculative to amount to aggrievement.
For the forgoing reasons, summary judgment must be granted to the defendants. I will direct entry of a judgment dismissing the complaint because the action is time barred under G. L. c. 249, § 4; the Plaintiffs have no right to seek a declaration under G. L. c. 240, § 14A; the Plaintiffs have no right to appeal under G. L. c. 40A, § 17 and the Plaintiffs lack standing under that statute.
Gordon H. Piper
Dated: June 29, 2009.
[Note 1] A predecessor Martha's Vineyard Commission (prior commission) was created by St. 1974, c. 637. Chapter 831 of the Acts of 1977 superseded St. 1974, c. 637, and subsequently was amended by St. 1979, c. 319.
[Note 2] The MVC acted with regard to Article 14.1 of the Edgartown by-law pursuant to st. 1976, c. 637, § 11, the original MVC Act, which was superceded by st 1977, c. 831, as amended by st. 1979, c. 319.
[Note 3] The SJC rejected the argument that those regulations passed under the MVC act that can be denominated as zoning laws should be considered zoning, while the balance of MVC regulations would fall under a different standard, calling it a spotty situation indeed. Island Properties, 372 Mass. at 227. The dispositive fact is that the regulation be inserted by the MVC, or adopted by the town to comply with the MVCs requirements. It is of no consequence that the regulation in question sounds like zoning, i.e., that it regulates an area traditionally the subject of zoning, like lot size, building height, or accessory uses. E.g. Hines, 24 Mass. App. Ct. 344 (holding Article 14.1, which created a special permitting process for accessory uses otherwise allowed by the Edgartown zoning by-law, not subject to G. L. c. 40A, § 6).
[Note 4] The rebuttable presumption of standing is provided to parties in interest, which include the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to abutters within 300 feet of the property of the petitioner as they appear on the most recent applicable tax list. See G. L. c. 40A, § 11.
[Note 5] Even if the Edgartown by-laws did create and define a protected interest in view, that alone is not enough to confer standing. Sweenie, 451 Mass. at 545-46. Plaintiffs in that situation still bear the burden of producing credible evidence to bring themselves within the scope of that protection. Id. at 546.
[Note 6] In Standerwick, the SJC interpreted Tsagronis to have conferred standing not on the basis of diminution of view alone, rather, on the basis that the injury to the plaintiffs was the increased density in a district where existing development is already more dense than the applicable zoning regulations allow. Standerwick,447 Mass. at 32. As a result of the increase in density, the plaintiff in Tsagronis suffered an impairment of his water view. The decision of the Appeals Court, Tsagronis v. Board of Appeals of Wareham, 33 Mass. App. Ct. 55 , 58-59 (1992) (Kass, J.), explicitly relied on density concerns, citing DiCicco v. Berwick, 27 Mass. App. Ct. 312 , 315 (1989) for the proposition that plaintiffs may assert a legal interest in preventing further construction in a district in which the existing development is already more dense that the applicable zoning allows. Likewise, The Appeals Court in Sheehan, 65 Mass. App. Ct. 52 , states we do not read the Tsagronis case to confer standing on a property owner who claims that development will obstruct a water view. Id. at 56.
[Note 7] Standerwick, supra, was decided under G. L. c. 40B, § 21, not c. 40A, § 17. While the standing requirements under the two statutes are different, see Standerwick, 447 Mass. at 28, the term person aggrieved should be interpreted in the same way under each regime. Id. at 27-28.
[Note 8] To hold otherwise would mean that a consideration not required to be made by the ZBA, and not part of the rights recognized or protected by the zoning regime, could engender standing simply because it tended to have a negative impact on property value. It would not do, for example, for a plaintiff to say that a house being built pursuant to a permit the plaintiff wanted to challenge would diminish the plaintiffs property value, because the defendants new home would be painted a garish color. The color chosen by the defendant is not regulated by zoning, and the diminution of value that the unsightly color brings about, no matter how firmly demonstrated, is not tethered to a proper interest or concern protected by zoning. Kelley v. Zoning Bd. of Appeals of Mashpee, Land Court Misc. Case No. 267578 (May 28, 2009) (Piper, J.) (decision from bench).
[Note 9] The four supplementary methods are:
[Note 10] The Baseline is the level of high groundwater. See Quintal Aff. ¶ 7.
[Note 11] The most likely explanation for this is the fact that normally, a decision by the BOH to grant a septic permit is appealed directly to the Superior Court pursuant to G. L. c. 249, § 4. See discussion, supra, at Part I.3.
[Note 12] And, unlike the zoning board case before me, Krafchuk was a judicial appeal from a planning board decision approving a definitive subdivision plan, and the court noted that potential runoff and flooding due to the subdivision constituted the type of injury that the subdivision control law was intended to protect against. G.L. c. 41, §81M (planning board shall exercise powers under subdivision control law with due regard for, among other things, securing adequate provision for water, sewerage, and drainage). Id.