RICHARD E. FRASER and LAURA FRASER v. ZONING BOARD OF APPEALS OF TOWN OF MARSHFIELD and STEVEN HERGET and KATHLEEN HERGET

Introduction

Plaintiffs Richard E. and Laura C. Fraser (Frasers / Plaintiffs) initiated this action seeking to annul a decision of the Zoning Board of Appeals of the Town of Marshfield (Board) by which a Special Permit was granted to Steven and Kathleen Herget (Hergets / Defendants). The Hergets have filed a Motion for Summary Judgment pursuant to Mass. R. Civ. P. 56(a) questioning inter alia the Frasers’ standing to challenge that Permit. The Plaintiffs have responded with a Cross-Motion for Summary Judgment. For the reasons that follow, the Defendants’ Motion will be allowed, while the Plaintiffs’ Cross-Motion will be denied.

Background

The Frasers own property located at 32 Shawmut Avenue, Marshfield, which directly abuts the Hergets’ residence at 24 Shawmut Avenue (Locus). The Hergets’ property is situated immediately to the northeast of the Locus, toward the Atlantic shore. [Note 1] Both parcels are located in the residential-waterfront R-3 zoning district. [Note 2]

On April 8, 2003, the Hergets obtained a Special Permit [Note 3] from the Board authorizing them to improve their existing non-conforming residence. Specifically, they sought to construct a two-story garage with a breezeway connected to the residence. [Note 4] The Locus consists of 8,100 square feet and “is non-conforming as to setbacks.” [Note 5]

Fire subsequently damaged their home, and while repairing it, the Hergets elected to make additional improvements to the residence which included the erection of a “tower-like observation room.” [Note 6] As these added improvements were beyond the scope of the April 8, 2003 Special Permit, the Town of Marshfield (Town) responded with a cease-and-desist order. [Note 7]

On February 13, 2007, the Hergets applied for a second Special Permit which would enable them to complete construction on the “tower-like” structure. [Note 8]

On April 10, 2007, the Board held the first public hearing on the matter. Prior to the second hearing on May 22, 2007, the Hergets scaled back, to some degree, their plans for the observation room. [Note 9] Thereafter, by decision of July 10, 2007, [Note 10] the Board unanimously granted the Special Permit. [Note 11] The Frasers then commenced this action, challenging the Board’s decision by Complaint filed with this court on August 7, 2007.

Though neither the Board nor the Hergets filed an answer, the parties did submit a Joint Case Management Statement. This court conducted a case management conference on November 10, 2007, at which Attorneys Galvin, Marzelli, and Davis appeared. On March 10, 2008, the Hergets filed the instant Motion for Summary Judgment, arguing inter alia, that Plaintiffs’ alleged injuries are insufficient to confer standing under G. L. c. 40A, §17. [Note 12] The Frasers responded on April 22, 2008, with a Cross-Motion for Summary Judgment. [Note 13] Both motions were argued before the Court in a hearing May 5, 2008.

In their Complaint, the Frasers cited concerns for neighborhood character and integrity of the zoning district as the source of their aggrievement. [Note 14] They reiterated these concerns when asked in interrogatories to “[s]tate in detail all your objections to the Special Permit as issued to the defendants on July 24, 2007.” At that stage of the litigation, the Frasers had alleged no direct impact to their property. [Note 15]

Through their summary judgment submissions, including affidavits [Note 16] and photographic exhibits, the Frasers also alleged that the Hergets obstructed their ocean view. They advanced as well the fourth and fifth grounds for aggrievement, i.e. concern for rainwater runoff and consequent roadway icing; and diminution in property value. [Note 17] In support of the runoff claim, the Frasers submitted photographs showing water in the public way near the Locus.

Discussion

1. 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 it 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, 14 LCR 442 , 444 (2006) (Long, J.), citing 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 v. Gen. Motors Corp., 410 Mass. 706 , 713 (1991), citing Celotex Corp. v. Catrett, 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 18]

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. Bd. 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 Univ., 64 Mass. App. Ct. 586 , 588 (2005).

Accordingly, once the moving party has met its 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 (D. Mass. 2006), citing 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, Attorney 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.

As detailed below, with their summary judgment submissions, Defendants provided sufficient evidence of non-aggrievement for this court to rule that Plaintiffs lack standing. Having made such a showing, the burden shifted to the Plaintiffs to come forward with evidence adequate, according to the relevant decisional law, see infra, § 2, to defeat Defendants’ motion and prevail on their own. As Plaintiffs failed to carry that burden, this matter is ripe for summary judgment.

2. Standing Requirements under G. L. c. 40A, § 17

Only persons aggrieved by a local zoning board’s decision may seek judicial review of that determination under to G. L. c. 40A, § 17. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996) (“[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. Bd. 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 19]

Although the words “person aggrieved” “have a comprehensive meaning and are not constricted to a narrow signification,” Godfrey v. Bldg. 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.” Standerwick, 447 Mass. at 30 (emphasis in original).

As “parties in interest” entitled to notice of proceedings under G. L. c. 40A, § 11, [Note 20] Plaintiffs enjoy 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 21]

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

That said, evidence adduced through discovery may rebut Plaintiffs’ 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 Plaintiffs’ presumption of standing either by providing affirmative evidence that a claimed 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”).

In the case at hand, the Defendants sought to contest the Plaintiffs’ claims of aggrievement by submitting evidence adduced through discovery, specifically Plaintiffs’ answers to interrogatories. [Note 22] These submissions have effectively rebutted Plaintiffs’ 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 the plaintiffs' shoulders to “demonstrate, not merely speculate, that there has been some infringement of [their] legal rights,” Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003), and “that [their] injury is special and different from the concerns of the rest of the community.” Standerwick, 447 Mass. at 33, quoting Barvenik, 33 Mass. App. Ct. at 132 (internal quotations marks omitted). Finally, as suggested above, establishing that a decision of the Board harms the Plaintiffs in a perceptible way is not sufficient alone to confer standing; Plaintiffs must also show the injury complained of is to “an interest the zoning scheme seeks to protect.” Standerwick, 447 Mass. at 32.

Although Plaintiffs bear the burden of proving aggrievement, because “[s]tanding is a gateway through which one must pass en route to an inquiry on the merits . . . , a plaintiff is not required to prove by a preponderance of the evidence that [their] claims of particularized or special injury are true.” Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005). Instead, Plaintiffs must come forward with “credible evidence to substantiate [their] allegations.” Marashlian, 421 Mass. at 721. To qualify as credible evidence, a proffer “must be of the type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's decision.” Butler, 63 Mass. App. Ct. at 441. Nonetheless, “whether a party is aggrieved is a matter of degree; and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule.” Rafferty v. Sancta Maria Hosp., 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.

3. Plaintiffs’ Standing

The Plaintiffs have presented five bases for aggrievement in support of their claim of standing. Of the five, however, only the claims regarding runoff of rainwater onto the street [Note 23] and diminution in property value may be legally cognizable under G. L. c. 40A, § 17. The other three alleged harms, even if proven, cannot confer standing in this case: obstructed ocean views, [Note 24] harm to neighborhood character and aesthetics, [Note 25] and concern for the permitting process. [Note 26]

In their Memorandum of Opposition to Defendants’ Motion for Summary Judgment, Plaintiffs cite Jepson v. Zoning Bd of Appeals of Ipswich, 450 Mass. 81 (2007), for the proposition that “flooding is a legitimate zoning related concern.” Specifically, Plaintiff Richard E. Fraser, in his Affidavit [Note 27] alleges that:

I have had occasion to observe this sloped area abutting the foundation [Note 28] shed rainwater onto the street on Shawmut Avenue and from the drain pipe and I have observed this water freeze on the street and creating a hazard on this small residential street which I drive multiple times per day when I am home. The area is depicted on photos attached as Exhibit B to my wife’s affidavit.

While claims regarding rainwater runoff and its subsequent freezing may constitute cognizable harm under certain circumstances, Plaintiffs have failed to demonstrate that it would threaten them in a manner special and different from the general community.

The Supreme Judicial Court has found that flooding may rise to the level of a cognizable injury under statutory schemes closely related to c. 40A. Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 523-524 (2009) (involving G. L. c. 41, §§ 81K-81GG, the so-called Subdivision Control Law); Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81 , 90 (2007) (concerning G. L. c. 40B). However, in those cases, the Court has only found standing when the threatened flooding would directly impact the plaintiff’s property.

The Jepson court found standing when a development threatened to exacerbate existing flooding problems on plaintiff’s property. [Note 29] 450 Mass. at 92. The Krafchuk Court similarly found standing when increased flooding threatened to overburden the plaintiff’s property and existing home. [Note 30] 453 Mass. at 523. That claim sufficed because “the potential harm to Krafchuk's property, posed by the likelihood of increased runoff and flooding, was special and different from any threatened injury to the community at large.” Id. at 524 (emphasis added).

In the case at bar, however, it is not at all certain that the phenomenon cited by the Plaintiffs rises to the level of flooding. Drainage concerns would perhaps more aptly describe the phenomenon described by the Plaintiffs. Even if one were to assume that the drainage issues cited by Plaintiffs do not require specialized expert testimony in order to establish cause and effect, [Note 31] the fact remains that the photographs, [Note 32] referred to by Plaintiff Richard E. Fraser in his Affidavit, appear to show what may best be described as “puddling.” At that, the puddles are not particularly different in nature or extent from those visible elsewhere on the street, presumably following a rain shower. [Note 33]

In any event, the accumulation of rainwater runoff alleged by the Frasers occurs only on the public roadway, beyond their property. They do not aver that the rainwater drains onto their property, or directly impacts that property in any way. [Note 34] As a consequence, the rainwater runoff and the potential seasonal freezing of that runoff do not constitute private harms cognizable for purposes of standing under § 17. [Note 35] See Butler, 63 Mass. App. Ct. at 440 (holding “[t]o show an infringement of legal rights, the plaintiff must show that the injury flowing from the board's action is special and different from the injury the action will cause the community at large”) (emphasis added).

In this regard, the Frasers’ specific use of the street is insufficient to establish a private harm special and different from that experienced by community at large. See Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 683 (2002) (holding “[i]ndividuals acquire standing by asserting ‘a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest,’ as distinct from a claim that involves a matter of general public interest”), citing Harvard Square Def. Fund, Inc., 27 Mass. App. Ct. at 492-493. Unable to demonstrate that their interests are “substantially different,” Nickerson, 53 Mass. App. Ct. at 683, or “special and different,” Butler, 63 Mass. App. Ct. at 440, than those of any other member of the community, the Frasers cannot obtain standing under § 17 based on their concerns relative to stormwater runoff.

Lastly, in her Affidavit, [Note 36] Plaintiff Laura Fraser asserts that the height of the tower, “even as scaled down . . . materially impacts their view of the Atlantic Ocean from the second floor of [their] home impacting [their] property value.” [Note 37] To the extent that Plaintiffs seek, in a meaningful fashion, to assert diminution in property value as a basis for standing, they must fail in their effort.

Laura Fraser’s statement is nothing more than a bald conclusion lacking any factual substantiation from the summary judgment record. It should be noted, as well, that the Plaintiffs have failed to “tether” such claimed diminution to an otherwise legitimate zoning interest, [Note 38] as they must under Standerwick v. Zoning Board of Andover, 447 Mass. 20 , 31-32 (2006). Moreover, this court is of the view that expert knowledge and skill are required if one is to estimate the impact of nearby construction upon his or her property value. The summary judgment record is devoid of any indication that Plaintiffs possess the requisite knowledge or skill to make such an evaluation. Accordingly, Plaintiffs cannot effectively rely upon claims of diminution in value to afford them standing to maintain this suit.

Conclusion

For the foregoing reasons, I conclude that Plaintiffs have failed to demonstrate the requisite aggrievement pursuant to G.L. c. 40A, § 17. Consequently, as they are without standing, this court lacks the jurisdiction to reach the merits of the Plaintiffs' case.

Accordingly, it is hereby

ORDERED that the Defendants’ Motion for Summary Judgment be, and hereby is, ALLOWED. It is further

ORDERED that Plaintiffs’ Cross Motion for Summary Judgment be, and hereby

is, DENIED.

Judgment to enter accordingly.

SO ORDERED.

By the Court. (Grossman, J.)

Attest:

Deborah J. Patterson

Recorder

Dated: July 8, 2009