ANA MARIA MEDEIROS, also known as ANA M. REIS, as Trustee of BAY WATCH REALTY TRUST v. BALDWIN BROTHERS, INC., JOSEPH NAPOLI, PETER F. WINTERS, PATRICIA McARDLE, and THOMAS MAGUARAN, as they are members of the OF MARION PLANNING BOARD

With the present motion, the private defendant in this abutter appeal, Baldwin Brothers, Inc. (defendant / Baldwin Bros.), seeks dismissal of the Complaint on grounds that plaintiff, Bay Watch Realty Trust (plaintiff / Bay Watch), lacks standing. Although in previous proceedings plaintiff advanced several bases for aggrievement, [Note 1] for present purposes, the only ground that plaintiff has not waived is its purported legal entitlement to sewer capacity. According to the plaintiff, it has a legal right to that capacity in the event that it builds a 192-unit, G. L. c. 40B development which was the subject of prior litigation between the Bay Watch and the town. [Note 2] The Housing Appeals Committee (HAC) decision to grant Bay Watch the requested relief was ultimately affirmed by the Appeals Court.

Pursuant to the HAC order issued in the prior lawsuit, the Town of Marion ( town / Marion) is under a legal obligation to make best efforts to enhance sewer capacity so that plaintiff may proceed with its development; however, the plaintiff does not now have a vested legal entitlement to sewer capacity. Further, the town is not currently obliged to reserve sewer capacity as against the day when it augments its sewer system, so that it can accommodate a project on the scale that the plaintiff proposes. As will be seen, in the event of a waiting list for sewer connections, the plaintiff is to be treated on a par with “all other applicants.”

While plaintiff lacks a vested interest in a specific amount of sewer capacity, it nevertheless has an interest in the sustainability of this utility. As a general matter, the preservation of utilities is an interest the zoning law seeks to protect. In the case at hand, the Zoning Bylaw (Bylaw) expressly renders this concern a protected interest. As the Supreme Judicial Court in Sweenie v. A. L. Prime Energy Consultants held, however, “the creation of a protected interest . . . cannot be conflated with the additional, individualized requirements that establish standing.” 451 Mass. 539 , 545 (2008). It is this showing that the plaintiff has failed to make.

This court finds that Bay Watch lacks standing as it has failed to meet its burden of showing that it currently holds a valid a sewer connection permit; or that it is entitled to priority over all others who seek to connect to the sewer system after December 5, 2005. [Note 3] Alternatively, plaintiff has similarly failed to demonstrate, with any factual specificity, that the Town of Marion Planning Board’s (Board) decision in the instant matter overburdened the town’s sewer system; or that any alleged overburdening has injured, or will cause injury to the plaintiff, an abutting property owner. In this way, Bay Watch has failed to present the appropriate quality of evidence upon “which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s decision.” Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005).

In short, on the summary judgment record before it, this court is unable to conclude that the capacity allocated to the defendant, as implicated by the grant of a special permit, amounts to an infringement of a private legal right vested in the plaintiff. Accordingly, for the reasons that follow, this court finds that the plaintiff lacks the necessary standing.

Background and Procedural History

Defendant, Baldwin Brothers, Inc., a Massachusetts Corporation, provides investment advisory services, [Note 4] and has a principal place of business at 3 Barnabus Road, Marion. [Note 5] It owns a recently configured 39,090 square foot parcel (Locus / subject property) on Spring Street in Marion, [Note 6] consisting of Lots 34 and 35, and a portion of Lot 36, as appearing on Map 24 of the Assessor’s Maps (Assessor’s Maps). [Note 7] The Locus sits in a General Business zoning district and contains a pre-existing Neo-Gothic residence built in 1875, the so-called Gurney House. [Note 8]

Plaintiff, Ana Maria Medeiros, a.k.a. Ana M. Reis, filed the present lawsuit in her capacity as trustee of the Bay Watch Realty Trust, which has its principal place of business at 3 Ledgewood Boulevard, Dartmouth. [Note 9] Bay Watch owns property off Spring Street in Marion, shown as Lots 27, 28 and 29. [Note 10] These lots comprise a 35-acre site (plaintiff’s parcel) to the north of the Locus, separated therefrom by a railroad right of way. [Note 11]

On June 29, 2001, the plaintiff filed an application with the Town of Marion Zoning Board of Appeals (ZBA). It sought a Comprehensive Permit under G. L. c. 40B, §§ 20-23 (c. 40B), which would authorize the construction of 192 apartment units distributed over sixteen buildings on plaintiff’s parcel. [Note 12] On December 3, 2002, the ZBA granted plaintiff a Comprehensive Permit, allowing a development of up to 96 units. [Note 13] Bay Watch appealed that decision to the Housing Appeals Committee (HAC) on December 5, 2002. [Note 14] HAC’s decision eliminated many of the conditions imposed by the ZBA, and allowed the project to move forward with the 192 residential units, [Note 15] as initially contemplated.

Although much of the HAC proceedings centered upon the economics of the project as conditioned, e.g. permitting only 96 units versus the 192 units sought by the plaintiff, [Note 16] one major point of contention between the ZBA and the plaintiff concerned the impact that the project would have upon the municipal sewer system. [Note 17] According to the HAC decision, [Note 18] Bay Watch’s civil engineer represented that the town’s wastewater management system was, at that time, near or at capacity. [Note 19] HAC, nonetheless, observed that, “[b]ased upon a twenty-year improvement plan . . ., done pursuant to the town’s Comprehensive Wastewater Management Plan (CWMP) and an Administrative Consent Order issued by the State Department of Environmental Protection (DEP),” the system’s capacity would in time increase by nearly 30%. [Note 20]

The ZBA argued that, despite this expected increase in the system’s capacity, the CWMP could not be altered to accommodate unexpected development, i.e. a project of that scale would threaten to overburden even the fully-enhanced system. [Note 21] Contradicting this position, plaintiff’s engineer projected that the 192-unit iteration of the project would “contribute 38,000 g[allons ]p[er ]d[ay] to the system,” [Note 22] which would account for only 30% of the system’s enhancement under the plan.

HAC therefore found that “with the construction of a new wastewater treatment facility there [would] be adequate capacity to accommodate [plaintiff’s] development, and that the [ZBA did] not me[e]t its burden of establishing specific practical local concerns that [would] preclude permitting the development to use the municipal sewer.” [Note 23] Accordingly, HAC “order[ed] the [ZBA] to permit a connection to the sewer.” [Note 24] HAC, nevertheless, added the following caveats:

If there is a waiting list for sewer connections, the [Board of Appeals] should ensure that the proposed development is given a place on that list in conformity with the same policies as are applied to all other applicants. This will ensure consistency with the statutory mandate that local requirements be applied equally to affordable housing. (emphasis added)

Holding Affidavit, Exh. “B,” p. 26 n. 24, citing, e.g., G. L. c. 40B, § 20; and, Of course, due to the existing Administrative Consent Order and the state surface water discharge permit (‘NPDES permit’), all necessary arrangements will require approval by DEP.

Id., pp. 26-27. Thus, HAC did not order immediate permitting of the project’s sewer connection. Rather, it imposed the following condition:

The [Board of Appeals] and other appropriate local officials shall take any and all necessary steps to permit the development to connect to the municipal sewer. If necessary, this shall include modifications to the town’s Comprehensive Water Management Plan . . . [Note 25]

Soon thereafter, the ZBA, together with the town itself, filed an action in Superior Court [Note 26] pursuant to G. L. c. 30A, § 14, seeking judicial review of the HAC decision. On June 19, 2007, the court (McLaughlin, J.) issued two orders, one on cross-motions for judgment on the pleadings, affirming the HAC decision below; [Note 27] and the other order denied Bay Watch a preliminary injunction, by which it sought to preserve a set amount of sewer capacity “until such time as Bay Watch has been allowed a connection to the municipal sewer system pursuant to the terms of the comprehensive permit approved by the defendant [HAC], or it is determined by a final judgment, after all applicable appeal periods have expired, that Bay Watch is not entitled to the comprehensive permit approved by HAC.” Holding Affidavit, Exh. “D,” p. 1.

In dispensing with the town’s argument that the HAC decision had usurped authority from DEP under the Administrative Consent Order between the Department and the town, the Superior Court referenced one of the passages quoted by this court above, in which HAC recognized the authority of the DEP, and conditioned any connection to the system or modification of the CWMP, upon DEP approval. [Note 28]

The court then reached the matter of plaintiff’s possible entitlement to sewer capacity more directly:

At oral argument on this issue, the court heard presentations that there is, or will be, insufficient capacity in the municipal sewer system to handle the sewerage produced by the [Bay Watch] subject project. The court made some inquiries as to that issue. It appears that the town of Marion may be allocating portions of the sewer system’s capacity to subdivisions where construction of homes has not begun and to areas of the town where, because the residences are relatively new, there are no substantial Title V issues. It was argued that such allocations are being made to defeat the subject property.

The HAC clearly directed:

‘If there is a waiting list for sewer connections, the Board [Note 29] should ensure that the proposed development is given a place on that list in conformity with the same policies or practices as are applied to all other applicants. This will ensure consistency with the statutory mandate that local requirements be applied equally to affordable housing.’

It would appear that to the extent a date of application is consideration in the placement of the list for sewer connections, the date of the application for this project’s sewer connection cannot be later than December 8, 2005, the date of the HAC decision.

Finally, because of the affirmation of the HAC decision as a judgment, the court has available to it various remedies, if it is shown that by means of spurious allocations, attempts are made to subvert the decision of HAC and the judgment of this court. Any allocations of waste water resources and/or any other acts by the plaintiffs, their agents, servants, employees, attorneys, or those persons in active concert or participation with them, aimed at hindering the objectives of the HAC’s decision, or this court’s judgment would be considered in violation of an order of the court.

The court will not presume that elected officials would attempt to subvert the clear decision of the HAC and the judgment of the court. Therefore, a preliminary injunction is not necessary because irreparable harm will not result if the motion for an injunction is denied.

Holding Affidavit, Exh. “D,” pp. 2-3, quoting from HAC decision below (citations omitted). [Note 30]

The ZBA, together with the town, filed an appeal of the Superior Court disposition, which was docketed at the Appeals Court on September 4, 2007. After oral arguments were heard on May 8, 2008, the Appeals Court affirmed the decision of the Superior Court below by way of an unpublished Memorandum and Order Pursuant to Rule 1:28. See Board of Appeals of Marion v. Housing Appeals Comm., Mass. App. Ct. Docket No. 07-P-1372, Memorandum and Order Pursuant to Rule 1:28, 2006 WL 4467255 (Oct. 19, 2008).

In that unpublished decision, [Note 31] the Appeals Court addressed the sewer issue as follows:

The plaintiffs next argue that the committee acted ultra vires of its authority in connection with its modification of the board’s condition on wastewater treatment. This claim is without merit because the committee’s order does not, as alleged, direct a sewer connection to be made or require a modification of the town’s approved Comprehensive Wastewater Management Plan, the DEP-issued Administrative Order, or the State surface water discharge permit.

. . . The committee . . . found that the town’s sewer system would have the capacity adequate to service the development upon completion of certain planned improvements. Accordingly, it eliminated the condition and directed local officials to take the steps necessary to permit such a connection to be made ‘under the supervision of the state Department of Environmental Protection.’ Its underlying intent, expressly state in the final decision, was to ‘ensure consistency with the statutory mandate that local requirements be applied equally to affordable housing.’

Due to the circumstances attending the work being done on the town’s sewer system, the town could not permit a connection without DEP’s approval. The committee, acknowledging this constraint, acted within its authority by ordering the local officials to work with the DEP in an effort to permit a connection. See Mahoney v. Board of Appeals of Winchester, 366 Mass. 228 , 232-233, 316 N.E.2d 606 (1974) (‘By the provision of c. 40B, § 21, the board has “the same power to issue permits or approvals as any local board or official who would otherwise act with respect to such application.” ’). The record does not show that the committee required that a connection be made absent the DEP’s approval. Even if the language of the committee’s order were ambiguous, we would read it so as to not conflict with the town’s obligations to the Commonwealth.

Id. at *3 (internal citation to record omitted) (emphasis added).

Meanwhile, on September 7, 2007, Baldwin Bros. filed an application with the Town of Marion Planning Board (Board) for a special permit for a commercial use in excess of 5,000 square feet, for site plan approval, and for a special permit seeking a reduction in the relevant parking requirement. [Note 32] The application contemplates the creation of 10,980 square feet of office space to house the defendant’s business, and the existing non-profit Marion Institute. To this end Baldwin Bros. sought to construct an 8,750 square-foot, single-story, office building and to renovate a 2,230-square-foot, pre-existing, two-story, nineteenth century residence. [Note 33]

As part of the application process, Jonathan Ford (Ford), a licensed professional engineer and principal of Morris Beacon Design hired by Baldwin Bros., prepared the plans depicting the site layout and design. [Note 34] In connection with this work, Ford designed the water and sewer connections in accordance with professional engineering standards. [Note 35] At that time, existing public water and sewer lines already served the Locus. [Note 36] On August 29, 2007 Ford met with the Marion Department of Public Works Superintendent, Robert C. Zora (Zora), who reviewed the plans, made no objection to the proposed connections, and suggested that the Locus seasonably connect to the town’s water and sewer systems upon obtaining the appropriate permitting. [Note 37]

The Planning Board heard the private defendant’s application on October 1, 2007, October 15, 2007, and November 19, 2007. [Note 38] At the last session, the Board closed the hearing, made findings where required, and voted to approve Baldwin Bros.’s applications on that date. [Note 39] On November 21, 2007, the Board issued written decisions on all three of the Defendant’s applications. [Note 40] Two conditions of the decision granting site plan approval address water and sewerage issues:

16. Water for domestic use and fire protection shall be provided through a connection to the existing water distribution system in Spring Street. All work shall conform to the Department of Public Works specifications.

17. Sewage disposal shall be achieved through a connection to the sewage collection system by means of an 8 inch gravity sewer to be installed on Spring Street. The sewer connection shall be constructed and maintained at the sole expense of the owner. The town will not be responsible for the operation and maintenance of said sewers until such time as the sewers are accepted by the town. All work within Spring Street including the installation of the sewers shall conform to the Department of Public Works specifications.

Baldwin Bros. Brief, Exh. “D,” p. 3.

On December 10, 2007, Bay Watch, acting pursuant to G. L. c. 40A, § 17, filed its Complaint seeking to annul the November 21, 2007 decisions of the Board. Baldwin Bros. answered on December 31, 2007. This court held a case management conference on April 16, 2008.

On June 12, 2008, defendant filed an application with Zora for a sewer connection permit. [Note 41] Zora approved this application and granted the permit subject to the conditions quoted above in the Board’s site plan approval decision. [Note 42] Both defendant’s application and Zora’s decision rested upon the existence of a grandfathered sewer stub at the Locus. [Note 43] Notwithstanding plaintiff’s appeal, the defendant commenced construction under the G. L. c. 40A, § 11, as amended, which allows the permit-holding applicant to move forward with development regardless of the pendency of a § 17 appeal. [Note 44] Plaintiff obtained its Final Certificate of Occupancy on November 6, 2008. [Note 45] Currently, Baldwin Bros. operates from its new headquarters at the Locus, and the Marion Institute resides at the Gurney House. [Note 46]

After a lengthened discovery calendar, [Note 47] the defendant filed a Motion for Summary Judgment on December 5, 2008, and its supporting memorandum with appendix on December 8, 2008. On January 5, 2009, plaintiff filed its Memorandum Submitted by the Plaintiff Ana Maria Medeiros, as Trustee, in Opposition to Baldwin Brothers, Inc. Motion for Summary Judgment, with supporting affidavit and appendix. This court heard defendant’s motion on April 14, 2009, as well as plaintiff’s opposition, and took the matter under advisement.

At oral argument, plaintiff’s counsel made several significant representations to this court. First, he expressly waived all other grounds for aggrievement other than the issue of sewer capacity:

[This Court:] Mr. Bentley, can I assume that you are not standing on traffic and other concerns that were apparently raised during the discovery phase?

[Attorney Bentley:] Those issues were raised during the discovery phase, but as we are standing here today we are not asserting those issues. [On] this whole issue [of standing], we are relying on the sewer connection [basis]. [Note 48]

Second, he admitted that, as of that date, plaintiff had not yet submitted a final plan for the development to the Board:

[This Court:] Have you completed the plans for your project?

[Attorney Bentley:] We do not have final plans in place for the project because the selectmen of the town have requested a variation on it and, as an accommodation to them, we have been discussing a variation.

Third, he acknowledged that, at that time, plaintiff had neither obtained DEP approval for a sewer connection, nor filed an application for a permit authorizing such a connection:

[This Court:] How far down the road are you for securing DEP approval [as alluded to in the HAC, Superior, and Appeals Court decisions]?

[Attorney Bentley:] I think the only DEP approval we need is a sewer extension permit and I believe that will be routinely granted.

[This Court:] Have you applied for that yet?

[Attorney Bentley:] We have not applied for that yet, because we do not know what the final footprint is going to look like. Because we have been discussing with the town their request for variations, we cannot locate the pipe until we know exactly where the footprint is going to be.

Counsel also acknowledged that an order of conditions had not yet been issued by the local Conservation Commission (Marion ConCom), although the relevant parties had completed a wetlands delineation for plaintiff’s parcel, with only engineering details relative to stormwater management yet to be resolved. Finally, he represented that plaintiff was six to eight months away from being able to break ground. Overall, the parties substantively disagreed regarding two factual points: a) whether the partially enhanced sewer system was already at or over capacity; and b) whether it would be feasible to commence construction in six to eight months.

In conjunction with its Motion for Summary Judgment, defendant provided this court with numerous documents intended to demonstrate plaintiff’s lack of aggrievement. [Note 49] One such document was an affidavit provided by the Superintendent of Public Works, Robert C. Zora. [Note 50] In that affidavit, Zora attests to the fact that plaintiff has not yet sought a sewer permit. [Note 51]

Defendant also submitted plaintiff’s answers to interrogatories, in which plaintiff a) admitted that “[n]o one on behalf of the Trust has undertaken any studies of [defendant’s] Project”; [Note 52] b) admitted that “[n]o one [on behalf of plaintiff] attended any hearings [relating to defendant’s development]”; [Note 53] and c) was unable to point to any facts concerning defendant’s project, save for its size, that would lead to plaintiff’s being denied sewer capacity to service its c. 40B development. [Note 54]

Defendant also provided this court with deposition transcripts from the two beneficial owners of Bay Watch, James E. Holding (Holding) and Kenneth P. Steen (Steen) to demonstrate the absence of a factual foundation to support plaintiff’s allegations of aggrievement. [Note 55] Generally, Holding criticized the Board’s decision on grounds that it had not required the same expert reports on wetlands, traffic, water and sewage issues that were compulsory when Bay Watch applied for its comprehensive permit. [Note 56] Specifically, on the matter of sewerage capacity, Holding could only offer the following:

[Attorney Bierwirth:] And sewer, what specific concerns do you have about sewer?

[Holding:] Again, we have a project and we want to make sure that there is capacity for our project.

[Attorney Bierwirth:] And how do you tie that into the Baldwin Brothers’ Project, sir?

[Holding:] We tie it in because we just want to make sure that when we go to connect our project that there’s significant – there’s another or amply enough capacity and that that capacity isn’t taken away by projects like Baldwin or any other project in .

[Attorney Bierwirth:] Do you know what the anticipated sewage use for the Baldwin Brothers’ project is?

[Holding:] No, I don’t.

***

[Attorney Bierwirth:] Can you please explain to me how the Baldwin Brothers’ project will overburden utilities and other public services?

[Holding:] Well, our concern is as stated previously, we’re concerned that the public service, i.e., sewer and water capacity should be looked at in relationship to the Baldwin Brothers’ project and therefore how that would impact our project. That is what we’re concerned about.

[Attorney Bierwirth:] Do you have any specific facts that support the allegation that the Baldwin Brothers use will overburden utilities and other public services?

[Holding:] Again, it’s impossible to make that determination because the reports were never created by Baldwin Brothers. We don’t know whether or not they will be or they won’t be.

Holding Deposition, pp. 44-45, 47-48. [Note 57] Holding further represented that, assuming the Appeals Court affirmed HAC’s decision below, Bay Watch still would have to “do a Wetlands filing, . . . a 314 sewer application, [and] to do a MEPA filing.” He was unable to estimate the amount of time necessary to complete those other permitting processes. Id., pp. 59-61.

Unlike Holding, Steen was twice deposed. During the course of those depositions, Steen was unable to articulate specific facts concerning the Baldwin Bros. project that posed a substantial likelihood of harm to the Bay Watch property. [Note 58] He offered generalized suggestions that the sewer system, even with the addition of a new treatment plant, was presently at or beyond capacity and legally could not provide new sewer connections. [Note 59] He indicated that he had hired an engineer to provide an expert opinion on a newly-released report on that system’s capacity [Note 60] and that he had consulted a DEP official with regard to the same. [Note 61] However, Bay Watch did not employ an expert to evaluate defendant’s project with regard to the sewerage issue. [Note 62] Steen demonstrated through his testimony, moreover, that he was not aware of the relevant zoning requirements for the Locus. [Note 63] Nor was he aware that site plan approval comprised an element of the relief granted to the defendant. [Note 64] As with Holding before him, he conceded that he had never attended any of the hearings on defendant’s applications. [Note 65]

Steen also attested to the fact that, at that time, plaintiff’s parcel was “[v]acant land, not being utilized.” Steen Deposition, p. 29. Moreover, particularly because of the pending appeal of the HAC decision, he could not speculate when, or even whether, Bay Watch’s development would move forward, or how many units it would ultimately contain. [Note 66]

With regard to the Locus’s sewer connection, the defendant provided several materials. The Ford and Grima affidavits both support the notion that the Locus was already served by the municipal water and sewer systems, and included a preexisting sewer stub. [Note 67] Defendant also submitted extracts from Zora’s deposition testimony suggesting that the issuance of a sewer connection permit was based upon the presence at the Locus of “a grandfathered existing connection., [which] could be used for a residential four bedroom, up to a maximum of five bedrooms, or commercial or industrial [uses].” Zora Deposition, p. 19.

Attached to its brief, Bay Watch submitted several documents intended to demonstrate plaintiff’s aggrievement. [Note 68] In the last paragraph of his Affidavit, Holding attempted to substantiate his claims:

Throughout the permitting of the 40B project at the Marion Board of Appeals level, the appeal to the Housing Appeals Committee, the appeal to Superior Court and the appeal to the Court of Appeals, one of the principal issue before all of those bodies was the capacity of the Marion Municipal Sewer System. In connection with those proceedings, I became familiar with the sewer system’s capacity generally. Additionally, I was aware that no inflow and infiltration project had begun within the town but that there were several plans in the permitting/funding phase. As a result of this knowledge, I had, and have, concern that the sewer capacity allocated to the Bay Watch project will be dissipated by improperly granted sewer connection permits.

Holding Affidavit, p. 2, ¶ 8. Most of the plaintiff’s remaining exhibits consist of legal documents from the prior litigation from which this court has already cited, and which bear on the legal question of Bay Watch’s entitlement to sewer capacity. The only submission that attempts to provide evidentiary support for Bay Watch’s claim of sewerage-based aggrievement is the report prepared by Camp, Dresser & McKee, titled Evaluation of Wastewater Treatment Plant Flows and Loads Available Sewer Capacity, [Note 69] the so-called CDM Report (CDM Report).

Plaintiff relies upon and quotes from this report for the proposition that the town’s sewer system is beyond capacity. See Plaintiff’s Brief, p. 7 (noting “[t]he report indicates that the permit held by the Town authorizes a rolling average of 0.588 million gallons per day as flow[, whereas] since the upgraded plant was place [sic] in service, the flow rate has averaged 0.602 million gallons per day[, which] ‘[t]echnically, . . . is a permit violation’”), citing to CDM Report, §§ 3.0, p. 2, 4.0, p. 7, and quoting from CDM Report, p. 13. Even a cursory examination of the CDM Report, which is dated April 2, 2008, indicates that plaintiff’s contentions about the system’s current capacity are not convincing. See CDM Report, § 8.0, p. 15 (concluding “[t]he plant has capacity to add the equivalent of 393 typical residential connections to its current loading [, or] 68,000 gpd”).

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, 14 LCR 442 , 444 (2006) (Misc. Case No. 308323) (Long, J.), 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 70]

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).

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, the parties dispute whether the town’s sewer system is below, at, or beyond capacity. After defendant offered sufficient evidence of non-aggrievement, plaintiff failed to demonstrate that it holds a legal entitlement to a specific amount of sewer capacity. It failed as well to proffer sufficient evidence that the town’s sewer system is presently at or over capacity, or that Bay Watch, in particular, would be harmed by any possible overburdening of that utility.

Accordingly, this case is ripe for summary judgment.

B. General Laws c. 40A, § 17 Standing

Only persons aggrieved by a ZBA decision may bring suit seeking judicial review of that administrative determination under 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 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 71]

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 on those who can plausibly demonstrate that a proposed project will injure their own personal legal interests and that the injury is to a specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect.” Id. at 30.

As “parties in interest” deserving notice of ZBA proceedings under G. L. c. 40A, § 11, [Note 72] plaintiffs are entitled to a rebuttable presumption of standing. Marotta, 336 Mass. at 204; Marashlian, 421 Mass. at 721 (“[a]butters entitled to notice of the zoning board of appeals hearing enjoy a rebuttable presumption they are 'persons aggrieved'”). This presumption, however, “does not shift the burden of proof; it is a rule of evidence that aids the party bearing the burden of proof in sustaining that burden by throw[ing] upon his adversary the burden of going forward with evidence.” Standerwick, 447 Mass. at 34, quoting from Epstein v. Boston Hous. Auth., 317 Mass. 297 , 302 (1944) (internal quotations omitted). [Note 73]

Legal arguments and mere allegations are not sufficient to rebut the plaintiffs' presumed standing. See Watros v. Greater Lynn Mental Health and Retardation Assoc., Inc., 421 Mass. 106 , 111 (1995) (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 plaintiff’s 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, the defendant may rebut the 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 the plaintiff lacks any 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, by means of extensive supporting documentation, the defendant has effectively rebutted plaintiff’s presumption of standing. It has done so with both affirmative evidence of non-aggrievement on the part of the plaintiff, see, e.g., Ford, Grima, and Zora Affidavits, and with negative evidence. See Plaintiff’s Answers to Interrogatories, together with the Holding and Steen Depositions. In this fashion, defendant has effectively undermined the factual foundation upon which Bay Watch’s claims of aggrievement rest.

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 plaintiff’s shoulders to “demonstrate, not merely speculate, that there has been some infringement of [her] legal rights,” Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003), and “that [her] 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 ZBA decision harms the plaintiffs in a perceptible way is not sufficient alone to confer standing. Rather, the plaintiff must also show the injury complained of is to “an interest the zoning scheme seeks to protect.” Standerwick, 447 Mass. at 32.

Although the 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 [her] 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 [her] allegations.” Marashlian, 421 Mass. at 721. To qualify as credible evidence, a proffer “must be of the type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's decision.” Butler, 63 Mass. App. Ct. at 441. Nonetheless, “whether a party is aggrieved is a matter of degree; and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule.” Rafferty v. Sancta Maria Hospital, 5 Mass. App. Ct. 624 , 629 (1977) (opined in concluding trial court did not abuse its discretion in finding standing) (citations omitted). Bearing these principles in mind, this court turns to the instant controversy.

1. Legal Cognizability

The primary thrust of Bay Watch’s argument for aggrievement centers upon its alleged vested legal right to sewer capacity, resulting from previous orders and decisions in its litigation with the town over its proposed G. L. c. 40B development. See Plaintiff’s Brief, pp. 5-6 (arguing “Bay Watch . . . holds, as a right, a sewer connection permit” by virtue of HAC order and Superior Court affirmation of same). See also Response of the Plaintiff to Memorandum of the Marion Planning Board in Support of the Motion for Summary Judgment (Plaintiff’s Reply Brief), p. 2 (asserting “Plaintiff is suffering a definite injury to its right granted by the HAC with respect to the sewer, confirmed by Superior Court and by the Court of Appeals”).

According to plaintiff, if this court concludes that it has such a right, then Bay Watch would be afforded standing to effectively contest any Board decision that implicates sewer capacity. See Steen Deposition, pp.54-56 (evincing intent to file appeals of other special permits that tacitly approved allocation of sewer capacity). However, as will be explicated, infra, § B.1.i, this court rejects plaintiff’s premise that it has a vested entitlement to designated sewer capacity.

Plaintiff further argues that the Bylaw creates a protected interest in sewer capacity through its text at § 7.2. See Plaintiff’s Brief, p. 8 (opining “obligation of the Planning Board [found in § 7.2 requiring consideration of adequacy of utilities in rendering special permit decision] clearly places the private right held by Bay Watch within the scope of . . . the Marion Bylaws”). While this court concurs that the plaintiff has identified a cognizable legal interest under the Bylaw, it disagrees that the plaintiff has any vested legal entitlement to a particular amount of sewer capacity, or that plaintiff has demonstrated a particularized injury to this protected interest. The relevant issues will be addressed seriatim.

i. HAC Order

In support of its standing argument, plaintiff argues that the HAC order, which authorized the c. 40B project of 192 units, granted Bay Watch a sewer connection permit, and, vested in it a right to 38,000 gallons per day of sewer capacity. See Plaintiff’s Brief, p. 6 ( “[t]he order in the HAC Decision constitutes a sewer connection permit as the Board failed to act within 30 days [and, therefore,] Bay Watch holds a valid sewer connection permit”). This argument is without merit.

It is clear that the HAC decision did not grant plaintiff a sewer connection permit. While HAC “order[ed] the [ZBA] to permit a connection to the sewer,” Holding Affidavit, Exh. “B,” p. 26, this imperative neither constitutes such a permit, nor was it manifestly intended as such. HAC expressly recognized the normal processes by which a municipality issues a sewer connection permit:

If there is a waiting list for sewer connections, the [ZBA] should ensure that the proposed development is given a place on that list in conformity with the same policies as are applied to all other applicants. This will ensure consistency with the statutory mandate that local requirements be applied equally to affordable housing. (emphasis added)

Holding Affidavit, Exh. “B,” p. 26 n. 24, citing, e.g., G. L. c. 40B, § 20.

Moreover, in light of the consent decree between DEP and the town, HAC recognized the DEP’s critical role in this regard:

Of course, due to the existing Administrative Consent Order and the state surface water discharge permit (‘NPDES permit’), all necessary arrangements will require approval by DEP.

Id., pp. 26-27. Accordingly, HAC imposed the following condition upon the town:

The [ZBA] and other appropriate local officials shall take any and all necessary steps to permit the development to connect to the municipal sewer. If necessary, this shall include modifications to the town’s Comprehensive Water Management Plan…. Holding Affidavit, Exh. “B,” p. 28.

Such language simply does not equate with the grant of a sewer connection permit.

On this point, both the Superior Court and the Appeals Court concur. Compare Holding Affidavit, Exh. “C,” pp. 4-5 (Superior Court noted that any sewer connection is subject to DEP approval as follows: “the decision of the HAC recognizes the authority of the DEP and does not usurp the DEP’s authority”); [Note 74] with Board of Appeals of Marion v. Housing Appeals Comm., Mass. App. Ct. Docket No. 07-P-1372, Memorandum and Order Pursuant to Rule 1:28, 2006 WL 4467255, *3 (Oct. 19, 2008) (holding “the committee’s order does not, as alleged, direct a sewer connection to be made or require a modification of the town’s approved Comprehensive Wastewater Management Plan, the DEP-issued Administrative Order, or the State surface water discharge permit”).

Indeed, the Appeals Court made clear that HAC could not have granted such a permit, even if it had wished to do so. See id. (finding and ruling “[t]he record does not show that the committee required that a connection be made absent the DEP’s approval [and e]ven if the language of the committee’s order were ambiguous, we would read it so as to not conflict with the town’s obligations to the Commonwealth”). Thus, plaintiff’s interpretation of the HAC decision is legally untenable. As such, this court rules that the HAC decision did not grant plaintiff a sewer connection permit and that Bay Watch lacks a vested legal entitlement to sewer capacity.

ii. Section 7.2 of the of Marion By-law

Though Bay Watch did not secure a legal right to sewer capacity from its litigation with the town concerning its c. 40B development, plaintiff has a cognizable legal interest in the preservation of sewer capacity in the town.

As stated in Kane v. Board of Appeals of Medford, “the essential and dominating design of [the] zoning law . . . is to stabilize property uses in . . . specified districts in the interests of the public health and safety and the general welfare . . . ” 273 Mass. 97 , 104 (1930). Accord G.L. c. 40A, § 3 (defining “zoning” as “ordinances and by-laws adopted by cities and towns to regulate the use of land, buildings and structures to the full extent of the independent constitutional powers of cities and towns to protect the health, safety and general welfare of their present and future inhabitants”); Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427 , 431 (1949) (“[t]he primary purpose of zoning with reference to land use is preservation in the public interest of certain neighborhoods against uses which are believed to be deleterious to such neighborhoods.”).

The preservation of utilities may be absent from these general expressions of the purposes underlying land use regulation in this Commonwealth; however, both the General Court and the Supreme Judicial Court have taken note of its relevance in the zoning context. See St. 1975, c. 808, s. 2A (including “sewerage” within its list of “suggest[ed] objectives for which zoning might be established” through the adoption of municipal zoning laws.); [Note 75] Lovequist v. Conservation Comm’n of Dennis, 379 Mass. 7 , 13-14 (1979) (likewise including “demands for sewers and other municipal services” as “typical of the concerns usually reflected in the zoning process”). But see P & D Service Co. v. Zoning Bd. of Appeals of Dedham, 359 Mass. 96 , 104 (1971) (opining “[n]either the question of the adequacy of the town’s common sewer nor the question of the applicability of, or compliance with, the Sanitary Code arose under the town’s zoning by-law”). [Note 76] Thus, even if the Bylaw were silent on the matter of utility supplies, this court would likely conclude that plaintiff has identified a cognizable interest under the local zoning law.

However, in Marion, the Bylaw makes the adequacy of utilities a required consideration for the Board when exercising its special permit granting authority. Section 7.2 of the Bylaw, [Note 77] captioned “General Requirements [for uses by special permit,]” states, inter alia,

Special permits shall be granted by the Special Permit Granting Authority, unless otherwise specified herein, only upon its written determination that the adverse effects of the proposed use will not outweigh its beneficial impacts to the town or the neighborhood, in view of the particular characteristics of the site, and of the proposal in relation to that site. In addition to any specific factors that may be set forth in this bylaw, the determination shall include consideration of . . . the following:

3. Adequacy of utilities and other public services . . . (emphasis added)

Beyond considerations arising from the Bylaw generally, this section, in particular, creates a protected interest in the preservation of the town’s utility supply.

The case of Monks v. Zoning Bd. of Appeals of Plymouth stands for the proposition that the text of a particular zoning bylaw can bring interests such as aesthetic concerns, which are not ordinarily within the area of concern of zoning law, within the scope of that specific bylaw. 37 Mass. App. Ct. 685 , 688 (1994) (holding “plaintiffs’ expressed concerns 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[, which] created and defined a protected interest [relative to neighborhood aesthetics]”) (internal citation omitted). The Supreme Judicial Court affirmed this principle in Martin v. The Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints. 434 Mass. 141 , 146 (2001) (holding “[a] defined protected interest may impart standing to a person whose impaired interest falls within that definition”). [Note 78] Accordingly, section 7.2 creates a protected interest in the preservation of sewer capacity. Nonetheless, such determination will not, in and of itself, afford Bay Watch the requisite standing.

2. Evidentiary Showing of Aggrievement

Under similar circumstances to those which pertain herein, the Supreme Judicial Court in Sweenie observed as follows with regard to a bylaw which required the permit granting authority “to give consideration to the potential threat to water quality that would result” from the grant of a special permit:

[The creation of a protected interest] alone is not a sufficient basis on which to confer standing. In Monks the plaintiffs established the link between the bylaw and themselves by producing evidence of the actual visible impact on their property. Here, the plaintiffs produced no credible evidence to bring themselves within the legal scope of the protected interest created by the bylaw. They bear the burden . . . of substantiating their claims regarding any potential threat to the quality of their drinking water in order to bring themselves within the legal scope of that interest.

The language of a bylaw cannot be sufficient in itself to confer standing: the creation of a protected interest (by statute, ordinance, bylaw, or otherwise) cannot be conflated with the additional, individualized requirements that establish standing. To conclude that a plaintiff can derive standing to challenge the issuance of a special permit from the language of a relevant bylaw, without more, eliminates the requirement that a plaintiff ‘plausibly demonstrate’ a cognizable interest in order to establish that he is ‘aggrieved.’

451 Mass. at 544-545, quoting from Standerwick, 447 Mass. at 30; citing Standerwick, 447 Mass. at 30; Marashlian, 421 Mass. at 723; Monks, 37 Mass. App. Ct. at 688 (internal citations omitted) (emphasis added). By analogy with the instant case, just as the plaintiffs in Sweenie both failed to demonstrate that groundwater contamination would occur and that such contamination would harm them, Bay Watch has utterly failed to show that the town’s sewer system is at or above capacity and that plaintiff’s property will be harmed by any alleged overburdening.

As to the first issue, i.e. the current state of the town’s sewer capacity, the plaintiff has provided this court with the CDM Report. This proffer does not qualify as credible evidence on the point of system capacity. First, plaintiff failed to submit an expert affidavit which would assist the court in determining what it is that this technical memorandum actually asserts. See Barvenik, 33 Mass. App. Ct. at 138 n. 13 (observing “[t]he need for expert testimony depends, as in all cases, upon the trial judge's discretionary determination whether or not the subject matter is beyond the scope of the common knowledge, experience or understanding of the trier of fact without expert assistance”). To assist this court in evaluating the probative value of this report on the issue of sewer capacity, such expert evidence should have been supplied. It is neither clear, therefore, precisely what the conclusions of that report are, nor whether CDM utilized correct assumptions or appropriate methodologies when rendering those conclusions.

Second, what bald accusations plaintiff contends are supported by that report are belied by a cursory reading of its text. See CDM Report, § 8.0, p. 15 (concluding “[t]he plant has capacity to add the equivalent of 393 typical residential connections to its current loading[, or] 68,000 gpd”). In light of passages such as the aforementioned, the report is far from unequivocal in concluding that the system is at or over capacity with the addition of the newly constructed treatment plant.

Third, the report was issued over a year ago, and during the pendency of the town’s CWMP, sewer capacity may well have increased. As such, the data presented in that report may well be stale. In short, plaintiff has failed to allege specific facts upon which this court could conclude that the town’s sewer system is presently at or above capacity. [Note 79]

Even if it had done so, however, when considering particularized aggrievement, this court notes that a) plaintiff’s parcel is currently vacant, see Steen Deposition, p. 29; b) that the permitting process with regard to plaintiff’s proposal is incomplete, see supra, p. 12; Holding Deposition, pp. 59-61; c) that Bay Watch lacks a final plan for its development, see supra, p. 12; and d) that at a minimum the project will not be shovel-ready for another six to eight months, see supra, p. 12. [Note 80] Thus, even if this court were persuaded that plaintiff could have a right to a place in line for a sewer connection permit, that right would not ripen until such time as the plaintiff were to apply for a sewer connection permit.

Given the vacancy of plaintiff’s land [Note 81] and uncertainty as to whether or when that project may move forward, this court would still conclude that Bay Watch’s allegations of sewerage-based aggrievement are overly speculative.

Accordingly, plaintiff has failed to “demonstrate . . . that there has been some infringement of [its] legal rights,” Denneny, 59 Mass. App. Ct. at 211, and “that [its] 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).

Conclusion

For the foregoing reasons, this court concludes that Bay Watch does not possess the requisite standing. Neither does it currently hold a “valid sewer connection permit;” nor is it entitled to priority over all others who seek to connect to the Town of Marion sewer system after December 5, 2005.

Moreover, based upon the summary judgment record, this court is unable to conclude that the Board’s decision in the instant matter served to overburden the Town’s sewer system. Even if that determination were otherwise, however, Bay Watch has failed to demonstrate that such overburdening has injured or would injure the plaintiff as an abutting property owner.

Inasmuch as plaintiff lacks standing, it follows that this court is without subject matter jurisdiction. The Complaint must, as a consequence, be dismissed. [Note 82] Accordingly, it is

ORDERED that Defendant’s Motion for Summary Judgment be, and hereby is

ALLOWED and the Complaint will be DISMISSED.

Judgment to enter accordingly.

SO ORDERED.

By the Court. (Grossman, J.)