ROBYN PARKER v. ANTHONY ARENA, FRANCIS SULLIVAN, PAUL F. MURRAY, and MAUREEN TARDELLI, as they are members of the Medford Board of Appeals; and VICTORIA KOROVILLAS

This case, an appeal of a decision of the Medford Zoning Board of Appeals (“Board”), whose members are defendants, concerns a variance granted by the Board to defendant Victoria Korovillas (“Korovillas”) for the maintenance of a three-story deck attached to the residential structure on her property in Medford. Plaintiff Robyn Parker (“Parker”) intervened in the case with the filing of the third amended complaint on September 18, 2008. On April 6, 2009, the court issued an Order Granting Defendant Korovillas’s Motion to Dismiss as to Plaintiff William Snyder. William Snyder (“Snyder”) was the original plaintiff who took the appeal from the Board.

In this case, which comes before me on cross-motions for summary judgment, I must decide whether the plaintiff Robyn Parker has standing to pursue this appeal under G. L. c. 40A, § 17; if I find the plaintiff to have the requisite aggrievement, I must decide whether the Board proceeded in error when it granted the variance to defendant Korovillas.

The following procedural history is taken largely from the court’s Order of April 6, 2009, which I incorporate in this decision by reference.

The action now pending follows an earlier case (Misc. Case No. 321411), also an appeal pursuant to G.L. c. 40A, §17 brought by Snyder from an earlier decision of the Board, whose members are defendants in both cases. In that earlier litigation, Snyder appealed from the Board’s decision declining to reverse the Medford Building Commissioner, who in turn had declined to enforce the City’s zoning ordinance (“Ordinance”) against Korovillas. Snyder had asked that the Building Commissioner rescind, or order stoppage of work under, a building permit issued to Korovillas for construction of a three-level structural deck addition (“Deck Addition”) to the dwelling owned by Korovillas at 90 Warren Street in Medford. When the Commissioner refused Snyder’s request, he appealed to the Board. When the Board refused to order enforcement, Snyder appealed to this court.

The court (Piper, J.) on March 29, 2007 granted a motion for summary judgment in favor of Snyder in the earlier case, Misc. 321411. Korovillas had not filed any written opposition to Snyder’s motion, and did not appear at the summary judgment hearing in the earlier case. [Note 1] In the April 3, 2007 judgment which issued in the earlier case, the court ruled that the Deck Addition, for which the Building Commissioner had issued building permit No. BP-2001-0321, was an expansion of a prior non-conforming structure on the Korovillas lot. The judgment in Misc. Case No. 321411 also reversed that part of the Board’s decision which had declined to reverse the Building Commissioner’s denial of Snyder’s request for enforcement of the Ordinance. The judgment remanded the matter to the Board, with instructions that the Board order the Building Commissioner to rescind building permit No. BP-2001-0321, and to take appropriate further action to enforce the Ordinance with respect to the Deck Addition. The judgment instructed the Board to give defendant Korovillas leave to apply for a variance, or for a finding or special permit pursuant to G. L. c. 40A, § 6 (or similar Ordinance provisions), which if granted would authorize the Deck Addition as a proper expansion of prior-existing, nonconforming structure.

Korovillas filed such a request with the Medford City Clerk on August 15, 2007. After public hearing on September 25, 2007, the Board issued a decision granting a special permit, filed with the clerk on October 17, 2007. The decision of the Board is known as SP-2007-11. On October 24, 2007 Snyder filed with this court a complaint pursuant to G. L. c. 40A, § 17, appealing from this decision by the Board, SP-2007-11. That appeal, Misc. Case. No. 357495, is the case now before the court.

At a case management conference held in this case on January 2, 2008, the court anulled SP-2007-11 because of an obvious procedural defect--the public hearing by the Board on the special permit request took place less than fourteen days after publication of notice. Korovillas was given until January 15, 2008 to request from the Board a finding or special permit pursuant to G. L. c. 40A, § 6, or a variance. The Board then took up the matter again, and this time issued Decision No. A+F-2008-2, filing it with the Clerk of the City on March 19, 2008. The decision granted Korovillas a variance from the provisions of section 94-241 Medford’s Zoning Ordinance, to the extent necessary to retain and maintain the Deck Addition. Snyder amended his complaint to appeal the March 19, 2008 decision pursuant to G. L. c. 40A, § 17; the amended complaint was filed April 29, 2008 after leave of court was obtained.

On June 9, 2008, Korovillas moved in the instant case to dismiss Snyder’s amended complaint under Mass. R. Civ. P. 12(b)(1). Korovillas maintained that the court lacked subject matter jurisdiction because plaintiff Snyder lacked standing, not being a “person aggrieved” under G. L. c. 40A, § 17. The court scheduled for July 29, 2008 a hearing on the motion to dismiss. On the preceding day, July 28, 2008, plaintiff moved for leave to amend his complaint to add Parker as another plaintiff. The next day, argument was held on the motion to dismiss, which, as earlier filed, dealt only with plaintiff Snyder. Snyder and counsel for the private and municipal defendants argued the motion. The court ruled that it would not then take action on the motion to dismiss, instead allowing Parker to move to intervene in the case pursuant to Mass. R. Civ. P. 24. Meanwhile, on August 22, 2008, Snyder filed a verified complaint for civil contempt. The court declined to take action on the contempt complaint pending full resolution of this case.

On September 4, 2008, the parties appeared and argued the motion to intervene, which the court allowed. The court granted defendants leave to amend the motion to dismiss to include the new plaintiff, Parker, but no such amendment was filed.

Parker moved for summary judgment on February 9, 2009. Korovillas cross-moved on March 23, 2009. Korovillas’s motion to dismiss Snyder was allowed on April 6, 2009. On April 21, 2009, hearing was held on the cross-motions for summary judgment, and they were taken under advisement.

The following facts are in the summary judgment record, and appear without dispute.

1. Parker owns property at 29/31 Chardon Road in Medford. Korovillas’s property at 90 Warren Street abuts Parker’s property to the west.

2. Both properties are located in the SF-1 single family residential district in the City of Medford. The current minimum lot size in the SF-1 zone is 7,000 square feet. Many lots surrounding 90 Warren Street are less than the required 7,000 square feet. Korovillas’s parcel is 7,979 square feet. Parker’s lot is 4,350 square feet.

3. In 2001, Korovillas had constructed a three-story deck on the side of the building at 90 Warren Street that faces Parker. The deck extends approximately twelve feet off of the building, and its outermost edge is less than five feet (between 4.6 feet and 4.8 feet) from the property line.

4. The deck replaced a preexisting sunroom, which stood in approximately the same footprint, but which was only one story tall. The sunroom extended no less than eight feet from the building at 90 Warren Street, and may have extended as much as twelve feet.

5. The required rear yard setback in the SF-1 district of Medford is fifteen feet. The front yard setback is also fifteen feet. On a corner lot, a side yard adjacent to a street has the same setback as a front yard. Otherwise, for side yards, the setback is 7.5 feet.

6. Section 94-172(e)(1) of the Medford Zoning Ordinance reads “No structure shall be built within the rear yard except for a structure accessory to a one or two-family dwelling which may occupy up to 25 percent of the rear yard area.”

7. Korovillas’s front lot line is along Warren Street. The rear lot line is adjacent to Parker’s property. The Chardon Road line and the line parallel to it are side lot lines.

8. Section 94-241(a) of the Medford Ordinance reads: “A single- or two-family residential structure may be altered, reconstructed, extended or structurally changed if said alteration, reconstruction, extension, or structural change does not increase the nonconforming nature of the structure.”

9. Section 94-242, titled “Nonconforming structures other than single- and two-family residential structures,” provides that “Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the board of appeals that such change, extension, or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.”

I. STANDING

Under G. L. c. 40A, § 17, only “persons aggrieved” have standing to appeal a decision of a zoning board of appeals. Sweenie, 351 Mass. at n. 9. If a plaintiff’s legal or property rights will (or likely will) be infringed by a board’s 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 plaintiff’s 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 2] although that presumption will fall away if adequately challenged, the question then to be decided on all the evidence. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-4 (1957). The plaintiff in such a circumstance must provide facts from which the court may find the aggrievement necessary to constitute standing. Standerwick, 447 Mass. at 33-35; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To establish standing a plaintiff “must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided “must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s 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 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.

Parker argues she is aggrieved by the deck addition because she suffers a diminution in property value, increased noise, decreased privacy, and an interference with light and air. These are, at heart, density concerns.

In an area where “existing development is already more dense than the applicable zoning regulations allow,” an abutter has a legal interest in preventing further construction. Standerwick, 447 Mass. at 31. “Crowding of an abutter’s residential property by violation of the density provisions of the zoning [ordinance] will generally” confer standing to take a zoning appeal. Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 297 (2008). Requirements regarding lot size, lot width, and setbacks are intended to control the density of development. See Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 12 (2009).

The evidence is clear that this portion of the SF-1 district in Medford is built to a higher density than the current zoning allows. The Deck Addition intrudes 10.4 feet into the required rear yard of fifteen feet. Minimum rear yard dimensions are density regulations. The proximity of the challenged addition to Parker’s residence, and its position overlooking her bedroom window, puts this density concern she has presented in concrete terms. Parker has made at least a plausible showing that the placement of the Deck Addition in the rear yard of 90 Warren Street results in a “crowding” of her residential property, by which she is aggrieved. See Sheppard, 74 Mass. App. Ct. at 12.

Korovillas argues that Parker can suffer no injury because she took title to her property after the Deck Addition was constructed, and with full knowledge of both its existence and its proximity to the property line of the land she was to acquire. Thus, Korovillas argues, Parker’s situation vis-à-vis the Deck Addition is the same as it has always been, which by its very definition does not support a determination that she has sustained injury. I disagree.

Aggrievement is not something that requires a lack of notice, bona fides, or good faith. The right to take a zoning appeal is created by statute, G. L. c. 40A, § 17, and is not analogous to common law doctrines like “coming to a nuisance” [Note 3] or “last clear chance.” [Note 4] When Parker purchased the property at 29/31 Chardon Road, she acquired the right to claim she was aggrieved by her neighbor’s alleged zoning violation. Cf. Blue Hills Office Park, LLC v. J.P. Morgan Chase Bank, 477 F. Supp.2d 366, 379 (D. Mass. 2007) (reasoning that right to take zoning appeal was included in the property rights subject to mortgage). This is particularly so where, at the time she purchased, an active judicial appeal was underway challenging the variance granted Korovillas, and Parker seasonably and successfully moved to intervene in that appeal. The right to contest the legal soundness of a variance decision is not necessarily cut off by the transfer of title to the neighboring land.

Having found that the one plaintiff in this case has proper standing, I now reach the merits of the variance.

II. VARIANCE

Section 10 of G. L. c. 40A provides that a local board of appeals may grant a variance when it “specifically finds [a] that owing to circumstances relating to the soil conditions, shape, or topography of such land . . . and especially affecting such land . . . but not affecting generally the zoning district in which it is located, [b] a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, . . . [c] that desirable relief may be granted without substantial detriment to the public good and [d] without nullifying or substantially derogating from the intent or purpose of such ordinance or by_law.” Warren v. Board of Appeals of Amherst, 383 Mass. 1 , 9 (1981). “No person has a legal right to a variance and they are to be granted sparingly.” Damaskos v. Board of Appeal of Boston, 359 Mass. 55 , 61 (1971).

Korovillas received a variance from the provisions of section 94-241, which provides that “A single- or two-family residential structure may be altered, reconstructed, extended or structurally changed if said alteration, reconstruction, extension, or structural change does not increase the nonconforming nature of the structure.” The Board’s decision of May 19, 2008 indicates that it will grant a variance from the application of the provisions of section 94-241 “to the extent necessary to permit [Korovillas] to retain and maintain” the Deck Addition.

It is not clear why, if a variance was the remedy intended, the Board did not grant relief from the rear yard dimensional requirements, to which the Deck Addition does not conform. The effect of granting a “variance” from section 94-241 would be that Korovillas could maintain the Deck Addition regardless of whether or not it represents an increase in the nonconformity from the previously existing sunroom. While styled as a variance, the relief granted attempts to operate like a special permit, or a finding under G.L. c. 40A, §6, allowing alteration of a preexisting nonconforming structure.

Section 94-242 of the Ordinance expressly provides for expansion of a preexisting nonconforming structure “other than single- and two-family residential structures,” upon a finding by the Board that “such change, extension, or alteration [is not] substantially more detrimental than the existing nonconforming use to the neighborhood.” This language is not present in section 94-241, which applies to single- and two-family homes, and there appears to be no avenue explicitly set forth in the Ordinance for such a finding, as it relates to single- and two-family homes. [Note 5]

No analysis of the requirements for granting a variance appears in the Board’s decision. The Board seemed to rely entirely on the fact that the Deck Addition was constructed pursuant to a valid (at the time) building permit. The Board cites a Middlesex Superior Court case, DiGiorgio v. Medford Bd. of Appeals, No. 89-6034-D (Mass. Super. July 5, 1991) for the proposition that a local board of appeals can be estopped from refusing to grant a variance to allow a petitioner to maintain a nonconforming structure built pursuant to a then_valid building permit. If that is the holding on which the defendants now rely, with respect I am not convinced that DiGiorgio represents the law of the Commonwealth.

The Board’s decision is fatally flawed because, not only does it fail to set out its analysis for concluding that the statutory prerequisites to the grant of a variance have been met, there is no evidence before me in the record from which the court could make any such findings. And the findings required by chapter 40A all must be made. “It will be noted that under these [statutory] provisions there are several prerequisites to the granting of a variance. These are stated conjunctively and not disjunctively. A failure to establish any one of them is fatal; yet in the report of material facts here not one of them has been found by the judge. This statute is not complied with merely by a finding that the board acted in good faith and that its decision was not arbitrary or unreasonable.” Blackman v. Board of Appeals of Barnstable, 334 Mass. 446 , 450 (1956).

The record simply does not support the contention by Korovillas that there are involved here “circumstances relating to the soil conditions, shape, or topography of such land . . . and especially affecting such land . . . but not affecting generally the zoning district in which it is located.” The lot in question is not especially afflicted with soil conditions, shape or topographical conditions that would justify a Board decision to vary the ordinance. From what the record shows, the lot is a generally typical, standard one in a normal shape, without unusual grade changes or soil conditions. It is a corner lot, but that alone does not make it unusual, certainly not in the sense the variance statute requires. And the lot’s size, while not as large as its owner might prefer, is larger than some of the other lots in the neighborhood, including the plaintiff’s, and appears to be larger than the minimum lot size the local zoning regulations require.

The record also does not contain facts which would support the required finding that “a literal enforcement of the provisions of the ordinance ...would involve substantial hardship, financial or otherwise,” to Korovillas. This is because it is not shown in the record that the existence of the current deck structure, even if, as claimed by Korovillas, it helps facilitate compliance with egress and safety codes, is necessary to avoid substantial hardship. The record does not demonstrate that this long-standing residential structure could not continue to be used as a private residence without those codes being implicated, and without the new deck addition being in place to provide egress. In any event, even if rear supplemental egress might be necessary to maintain use of the structure as a group home, as the defendant seems to argue, there is no showing that the required egress could not be provided in a way that does not project as much into the rear yard as the challenged structure does. Korovillas cannot set up as hardship, even of the economic kind, the costs she will face in removing the current deck structure, because she built it without permission, making that particular hardship one she created.

For at least these reasons, the decision of the Board granting the variance must be annulled. There is no indication the Board found that the Deck Addition met any of the requirements for a variance as set forth in G. L. c. 40A, § 10, and the Board thus proceeded on a legally untenable ground when granting a variance. The court discerns no basis in the record on which the Board could have made the necessary findings, in any event.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: July 7, 2009.