TITANIUM GROUP, LLC v. ZONING BOARD OF APPEALS OF THE CITY OF BROCKTON, ET AL.

By means of the instant motion, the defendants Cardinale Plaza, Inc. (Cardinale) and William Wainwright (defendants), seek dismissal of plaintiff’s appeal from the decision of the Brockton Zoning Board of Appeals (ZBA), i.e. a decision granting Cardinale Plaza, Inc. a special permit to operate a restaurant in a C-2 Zoning District. As grounds for dismissal, defendants contend that the plaintiff lacks standing. This court agrees.

In launching its appeal, Titanium Group, LLC (plaintiff/Titanium) advances three theories of aggrievement. First, the plaintiff asserts that the proposed restaurant will result in congestion over an easement burdening its property, thereby threatening to obstruct employee and customer access to its business. While it is undisputed that the proposed development will result in a traffic increase, plaintiff’s argument for traffic-based aggrievement is, nonetheless, unavailing. The record is devoid of evidence upon which a reasonable person could conclude that such obstruction would flow from the ZBA’s grant of a special permit. Consequently, plaintiff’s argument for a traffic-based injury is too speculative to confer standing.

Second, the plaintiff contends that the use sanctioned by the special permit would increase the level of vehicular trespass upon its property. [Note 2] This court concludes that, as a matter of law, such an injury is not cognizable under G.L. c. 40A, because the vehicular trespass at issue, does not represent the type of harm against which the zoning law is intended to protect.

Third, pursuant to its Sur-Reply Brief plaintiff alleges that the sizeable parking lot serving the Cardinale Shopping Plaza will be inadequate to meet demand causing customers of the proposed restaurant to park on plaintiff’s property without permission. However, plaintiff has failed to provide sufficient evidence to elevate this claim beyond the realm of speculation.

Even assuming, however, that the plaintiff had submitted competent evidence to support this argument, it would fail for substantially the same reason as did the second theory. In this court’s view, zoning regulations are not as a rule, intended to protect against trespassory parking [Note 3] of the sort here alleged. Thus, plaintiff’s claim of aggrievement predicated upon this theory, would not be cognizable under G.L. c. 40A, § 17, even if properly supported.

Accordingly, as the plaintiff lacks standing under the three theories which it advances, this court lacks the requisite jurisdiction. Consequently this lawsuit must be dismissed.

Background and Procedural History

The present dispute concerns property rights in an area of Brockton bounded by North Pearl Street (a.k.a. Route 27) to the west, the Oak Street Extension to the north, Oak Street to the east, and the Good Samaritan Medical Center to the south. [Note 4] The area at issue consists primarily of a shopping plaza. It includes numerous buildings directly fronting on the surrounding streets with a large parking lot, consisting of 411 spaces, in the center. [Note 5]

A building at 265 N. Pearl Street houses Frank’s Restaurant and the Foxy Lady night club, both of which are owned by Cardinale’s principal Frank Caswell. [Note 6] Immediately to the south, at 255 N. Pearl Street, is the law office of defendant William Wainwright. [Note 7] Plaintiff’s lot, upon which it intends to operate a car wash, abuts and is directly south of the said law office at 245 N. Pearl Street. [Note 8] Across the parking lot to the east of these buildings is a retail building owned by Cardinale, and a closed, now vacant movie theater at 915 Oak Street. [Note 9] It is this building that Cardinale proposes to convert into a restaurant. And it is this proposed project that is the subject of the special permit plaintiff now appeals.

Were this restaurant built, it could be accessed by motor vehicle using any one of seven access points linking the shopping plaza area to public roads. [Note 10] One of those seven access points is over a deeded easement granted to Cardinale [Note 11] in 1992, by plaintiff’s predecessor in title. [Note 12] The operative language appearing in the deed is as follows:

A 20 foot wide easement over the northerly portion of Lot 1 on a plan entitled “Plan of Land Prepared for The Southland Corp. in Brockton Mass.” dated June 17, 1992 to be recorded herewith and shown on said plan as “Easement 3000 +/- S.F.”

Said easement is non exclusive and for the use of vehicles and foot traffic for ingress and egress to and from North Pearl Street to and from the lands of Cardinale Plaza, Inc. and Frank’s Plymouth, Inc. [Note 13] (emphasis added)

At the time of the original grant, approximately 100 linear feet of the right of way had been paved. It has since been improved by Cardinale, so that the entire 150 foot length of the easement is now paved. [Note 14]

Plaintiff took title to the property in 2002. [Note 15] However, since that time, disputes have arisen between plaintiff and Cardinale relative to the easement. [Note 16] On October 12, 2006, Cardinale submitted an application for a special permit to the ZBA, requesting authorization for a restaurant use at 915 Oak Street, in Brockton’s C-2 Zoning District. [Note 17] Plaintiff’s property too, is in the C-2 Zoning District. Both proposed uses, i.e. plaintiff’s car wash and Cardinale’s restaurant, require special permits to operate in that District. [Note 18]

At a public hearing on the Cardinale application on November 14, 2006, the ZBA voted to deny the application. No appeal was taken. [Note 19] On December 18, 2006, having revised its original plan, Cardinale filed an application with the Brockton Planning Board seeking authorization to return to the ZBA for a special permit. The Planning Board acceded to Cardinale’s request. [Note 20] In April, 2007, Cardinale once again submitted a petition to the ZBA seeking a special permit. This time the application was granted. [Note 21] This lawsuit followed. [Note 22]

The Complaint cites three statutory bases for the court’s jurisdiction in this matter. First is an appeal pursuant to G.L. c. 40A, § 17 of the ZBA’s decision granting Cardinale a special permit to construct a restaurant. Second is an action in the nature of certiorari under G.L. c. 249, § 4, seeking review of the Planning Board’s decision granting site plan approval to the project. Third is an action under G.L. c. 231 requesting a declaration that the Planning Board rules and regulations concerning Cardinale’s application for permission to return to the ZBA, are null and void as being in excess of the authority granted that body by G.L. c. 40A, § 16. [Note 23]

Defendants Cardinale and Wainwright filed their answers on June 29, 2007, while the defendant ZBA answered on July 11, 2007. After the filing of a joint case management statement on August 20, 2007, and a case management conference conducted on August 27, 2007, defendants Cardinale and Wainwright filed the instant Motion for Judgment on the Pleadings. Attached thereto were affidavits of Cardinale’s Counsel David Berman, Cardinale’s principal Frank Caswell, and John Gillon, a traffic engineer. In their brief, defendants assert that plaintiff is not a person aggrieved under G.L. c. 40A, § 17, and, as such, is without standing.

On December 20, 2007, plaintiff filed its opposition to defendants’ motion, along with a supporting memorandum, and affidavits of Ronen Drory, principal of Titanium, Catherine Savoie, plaintiff’s counsel, and Jennifer Conley, a traffic expert. Defendants Cardinale and Wainwright filed their Reply Brief in support of their Motion for Judgment on the Pleadings on December 28, 2008. Plaintiff then filed a Sur-Reply Brief and a supplemental affidavit of Drory on January 2, 2008.

In its Memorandum in Opposition, plaintiff contends that it has provided “specific, factual support for its claim of particularized injury.” [Note 24] This support is purportedly predicated upon evidence adduced by the plaintiff, demonstrating that the proposed restaurant “will increase the incidents of trespassing on Titanium’s property…and increase congestion on and surrounding Titanium’s property which will impair access to Titanium’s property over the easement.” [Note 25] The evidence plaintiff proffers for this purpose consists of several affidavits.

The first affidavit, given by Ronen Drory, essentially reiterates the allegations contained in the Complaint. In his supplemental affidavit, however, Drory attests to specific incidents in which a trespasser parked on plaintiff’s property, and in which the parking lots on Cardinale Plaza overflowed to the point of blocking access to the easement. [Note 26] In Attorney Catherine Savoie’s affidavit, she recounts several instances of alleged trespass by vehicles traveling beyond the easement onto plaintiff’s property. [Note 27] There appears to be no basis on this record on which to distinguish the portion of the way consisting of the easement, from that portion consisting of plaintiff’s property adjacent to the easement. [Note 28]

Plaintiff’s final proffer is an affidavit of a traffic engineer, Jennifer Conley. [Note 29] In that affidavit, Conley avers that she observed traffic on Friday, December 14, 2007, and Saturday, December 15, 2007, between 4:00 p.m. and 6:00 p.m. on Friday, and between 11:00 a.m. to 1:00 p.m. on Saturday. Conley contends these are the peak hours for those days. [Note 30] During her observations, 28 and 20 vehicles, respectively, traveled over the easement. [Note 31] On these trips, according to Conley, an average of 15% of the vehicles using the easement trespassed on plaintiff’s property. [Note 32] Based on these observations, Conley estimated that between 7 and 14 more vehicles per peak hour would trespass onto plaintiff’s property, and 33 more vehicle trips would occur along the easement during peak weekday hours (and 65 during Saturday peak hours), if the restaurant were built. [Note 33]

For their part, the defendants have supplied three affidavits contesting plaintiff’s claims of potential harm. The first, given by John Gillon, a traffic engineer, states that there are, at a minimum, two other means of accessing the proposed restaurant that are more convenient than the plaintiff’s easement. [Note 34] Gillon further contends that, based upon the traffic counts provided by the Massachusetts Highway Department, the restaurant would generate only 20 total outbound trips per peak hour on weekdays. [Note 35] He, therefore, concludes that the construction of the restaurant will not overburden the easement. [Note 36]

The second affidavit, provided by Frank Caswell, asserts that, if any use is likely to overburden the easement, it would be plaintiff’s proposed car wash, rather than Caswell’s proposed restaurant. [Note 37] Attorney David Berman provided the third affidavit attesting to the validity of certain Cardinale exhibits. [Note 38] Discussion and Analysis

A. Summary Judgment Standard

There is some dispute as to the nature of this motion: whether it is a Motion for Judgment on the Pleadings or a Motion for Summary Judgment. The defendants have styled it as the former, and the plaintiffs contend that it is, in fact, the latter. Because both sides have adduced expert and percipient affidavits, this court considers the instant motion as one seeking summary judgment. See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 555 (1999) (affirming trial judge’s exercise of discretion in treating a Mass. R. Civ. P. 12(b)(1) motion as a motion for summary judgment, when parties supplied supporting papers). As such, the summary judgment standard shall be applied.

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

To meet his burden, the moving party need not proffer affidavits or other similar materials negating the opponent’s claim. Kourouvacilis, 410 Mass. at 713, citing Celotex Corp., 477 U.S. at 323. “The 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. 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 39]

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” and reliance upon mere “bald conclusions” is an inadequate means of defeating the motion. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

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 [fact finder] 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. While there are factual disputes between the parties, the record before the court reveals no genuine factual dispute, material under the relevant law, which would preclude a legal determination on the issue of plaintiff’s standing. Accordingly, the case is ripe for summary judgment. B. Standing Pursuant to G.L. c. 40A, § 17

The Complaint sets out three grounds upon which the plaintiff seeks to invoke the jurisdiction of this court., i.e. a statutory appeal of a ZBA decision, an action in the nature of certiorari seeking review of an otherwise unreviewable administrative decision by the Planning Board, [Note 40] and an action under G. L. c. 231[A] [Note 41] for declaratory judgment seeking to annul provisions of the Brockton Planning Board Rules and Regulations “governing the request for permission to return to the Zoning board of Appeals.” In their Motion, defendants appear to conflate the three matters so that they are treated as a single issue involving the grant of a special permit under § 17. Likewise, the plaintiff itself limits its response to a discussion of those same § 17 issues. It is this court’s view in any event, that a resolution with regard to the plaintiff’s standing under § 17 will be dispositive of the lawsuit in its entirety. [Note 42]

Only persons aggrieved by a decision of the special permit granting authority may bring suit seeking judicial review of that 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, 336 Mass. at 202-203 (“[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”). See also Sweenie v. A. L. Prime Energy Consultants, 451 Mass. 539 , 542 n. 9 (2008) (“aggrievement for purposes of pursuing an appeal under G.L. c. 40A, § 17, is a jurisdictional requirement” [internal quotations omitted]); Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 334 (1994) (“[s]tanding as an aggrieved party is jurisdictional and cannot be conferred by stipulation or waiver) (Abrams, J., Dissenting); Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 131 (1992) (“'[a[ggrieved person' status is a jurisdictional prerequisite” for § 17 review).

Although the words “person aggrieved” “have a comprehensive meaning and are not constricted to a narrow signification,” Godfrey v. Building Com'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 43] plaintiffs are entitled to a rebuttable presumption of standing. Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957); 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 marks omitted). Cf. Watros v. Greater Lynn Mental Health and Retardation Assoc., Inc., 421 Mass. 106 , 111 (1995) (“presumption recedes when defendant challenges a plaintiff's status as an aggrieved person and offers evidence supporting his or her challenge”).

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

That said, evidence adduced through discovery may rebut the 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, the defendant rebutted the plaintiff’s presumption of standing by submitting an expert affidavit concerning the issue of traffic over the plaintiff’s easement. Compare supra, p. 7 (recounting traffic engineer Conley’s conclusions with regard to the impact of the proposed restaurant upon the plaintiff’s property and the disputed easement); and p. 7 (summarizing traffic engineer Gillon’s conclusions, which were contrary to those offered by Conley). That affidavit attempted to refute the notion that, if built, the proposed restaurant would cause increased levels of trespass and the over-burdening of the easement. As the affiant gave his expert opinion based on facts recited under the pains and penalties of perjury, his affidavit constitutes evidence sufficient to rebut plaintiff’s presumption of standing.

Having rebutted the plaintiffs' presumption of standing, by contesting their bases for aggrievement with competent evidence, 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 with the plaintiff to “demonstrate, not merely speculate, that there has been some infringement of [its] legal rights,” Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003), 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). Finally, as suggested above, establishing that a ZBA decision harms the plaintiff in a perceptible way is not sufficient alone to confer standing; plaintiff must also show the injury complained of is to “an interest the zoning scheme seeks to protect.” Standerwick, 447 Mass. at 32.

Although plaintiff bears the burden of proving aggrievement, because “[s]tanding is a gateway through which one must pass en route to an inquiry on the merits..., a plaintiff is not required to prove by a preponderance of the evidence that [their] claims of particularized or special injury are true.” Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005). Instead, plaintiff must come forward with “credible evidence to substantiate [their] allegations.” Marashlian, 421 Mass. at 721. To qualify as credible evidence, a proffer “must be of the type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's decision.” Butler, 63 Mass. App. Ct. at 441. Nonetheless, “whether a party is aggrieved is a matter of degree; and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule.” Rafferty v. Sancta Maria Hospital, 5 Mass. App. Ct. 624 , 629 (1977) (opined in concluding trial court did not abuse its discretion in finding standing) (citations omitted). Bearing these lessons in mind, this court turns to the instant controversy.

On both asserted bases of aggrievement, the parties have provided this court with opposing affidavits. Typically, a disagreement of this sort is met with a denial of the motion for summary judgment. In this case, however, even assuming the accuracy of plaintiff’s allegations as they relate to increased levels of traffic and trespass caused by the grant of the special permit, they cannot, as a matter of law, supply sufficient bases for standing pursuant to G.L. c. 40A, § 17. The following subsections address each basis in turn.

1. Increased Traffic

Plaintiffs allege that the ZBA’s grant of a special permit will cause congestion, which in turn will injure Titanium by obstructing employee and customer access to its business. [Note 44] This argument fails for several reasons, but primarily because plaintiff has not met its burden of persuasion.

Traffic concerns legitimately fit within the ambit of zoning regulation, and have been held to provide a viable basis for aggrievement under § 17 review. See Marashlian, 421 Mass. at 722 (concerns relative to “increased traffic…are legitimately within the scope of zoning laws”); Barvenik, 33 Mass. App. Ct. at 133 (including “possible vehicular traffic increases” in its list of “legitimate zoning-related concerns”). Nonetheless, not all traffic-based objections to a special permit or variance will furnish a plaintiff with standing. The traffic-based injury to a § 17 plaintiff must be more than speculative, and must bear some nexus to the plaintiff’s use and enjoyment of its property. [Note 45] Here, the plaintiff’s traffic-based claim of aggrievement is too speculative to survive summary judgment, because Titanium has failed to provide evidence sufficient for a reasonable person to believe that its premises will be obstructed by increased traffic occasioned by the presence of restaurant nearby.

In her expert affidavit, engineer Conley argues that there will be a significant increase to the level of traffic over the easement burdening plaintiff’s property as a result of the ZBA’s issuance of a special permit to Cardinale. The mere demonstration that traffic will increase, as a consequence of the grant of zoning relief, is typically inadequate, without more, to make out a viable claim for aggrievement. Instead, as noted above, a § 17 plaintiff must show how this increase will infringe upon its use and enjoyment of its property. Id.

Nowhere in her affidavit, however, does Conley touch on the issue of capacity nor does she posit a traffic level that would exceed the easement’s capacity. Accordingly, there is nothing on the summary judgment record to suggest that increased traffic would strain the easement’s capacity. Moreover, Conley does not posit that the increased level of traffic would obstruct Titanium’s property. [Note 46] Consequently, the possibility that plaintiff’s property might be obstructed in some fashion, is not a proposition supported by competent evidence. Rather, it is overly conjectural in nature. See Cohen, 35 Mass. App. Ct. at 623 (“[e]ven assuming that the anticipated traffic increases and delays will result, there is no specific showing that the plaintiffs will either be injured…or, indeed, that their traffic-dependent businesses would not benefit from increased traffic.”).

This speculative nature of any alleged obstruction gains further support from the fact that plaintiff’s lot stands vacant at the present time. See Ronen Supplemental Affidavit, ¶ 2 (admitting “[t]here is currently no business operating on my property”). Under the circumstances, allegations of obstruction to its business caused by increased traffic levels are even more attenuated. Practically speaking, it is unclear at this juncture, how plaintiff’s patrons and employees might access its business at some future time, i.e. assuming its property is ultimately converted into a car wash, as presently contemplated. While plaintiff has submitted a proposed plan depicting how this business might well be configured in relation to the Cardinale easement, it is not absolutely clear the car wash as finally developed will precisely mirror that which is envisioned by the plaintiff.

Moreover, even if the decisional law equated per se increases in local traffic levels with abutter aggrievement, the plaintiff in this case would be legally foreclosed from such a claim. Cardinale enjoys a deeded easement burdening plaintiff’s property. In this Commonwealth, the intent of the grantor sets the scope of an easement, and such intent is to be determined by looking at the language of the conveyance taken with the attendant, legally material, circumstances that might logically bear on that intent. Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179, citing, e.g., J.S. Lang Engr. Co. v. Wilkins Potter Press, 246 Mass. 529 , 532 (1923). See also Goldstein v. Beal, 317 Mass. 750 , 755 (1945) (“[i]n determining the intent, the entire situation at the time the deeds were given must be considered”), quoting Prentiss v. Gloucester, 236 Mass. 36 , 52-53 (internal quotations omitted).

Here, Southland, Inc., plaintiff’s predecessor in title, granted an easement to Cardinale that, by its very nature, provides ingress and egress to the shopping plaza. Whether that easement was being readily utilized at the time plaintiff took title to the servient estate is irrelevant to the continued legal vitality of that easement, without some affirmative evidence of abandonment. See Willets v. Langhaar, 212 Mass. 573 , 575 (1912) (“[n]othing more than failure to exercise their rights for a period of 23 years…does not constitute an abandonment”). To the extent that plaintiff complains of the legally authorized use of the easement by Cardinale the easement holder, and by Cardinale’s licensees, plaintiff lacks a colorable claim for aggrievement.

Finally, it is well to note in this regard, that there are ample as-of-right uses that could be made of the locus within the C-2 District, which would generate increased traffic levels over the easement. [Note 47] In fact, because the theatre at which the proposed restaurant would reside is currently not being used for any purpose whatsoever, any use thereof would likely cause such an increase. [Note 48] See in this regard Marashlian, 421 Mass. at 724 (“the magnitude of the threat of harm to a potential plaintiff in relation to the threat of harm from a use permissible as of right is a factor that may be considered”).

Thus, in light of the foregoing, this court rules that the “general and conclusory allegations [of traffic-based aggrievement found in Conley’s] affidavit cannot be transformed by inference into genuine triable issues.” Cohen, 35 Mass. App. Ct. at 623, citing First Nat’l Bank v. Slade, 379 Mass. 243 , 246 (1979). Consequently, an increase in traffic levels as herein alleged, will not provide plaintiff with the requisite standing.

2. Increased Trespass

As photographs appended to plaintiff’s affidavits suggest, plaintiff’s primary concern relates to trespass. Titanium believes that the operation of a restaurant on defendant’s plaza will increase the number of shoppers who trespass upon plaintiff’s property, while utilizing the easement. Plaintiff’s argument [Note 49] is as follows: in using the easement to access the shopping plaza, third parties currently trespass upon plaintiff’s property approximately 15% of the time; the addition of the restaurant will increase traffic over the easement, thereby increasing the number of patrons who trespass upon plaintiff’s property. Significantly, plaintiff does not allege that these trespasses either cause or are likely to result in actual damage. Rather, any injury presumably arises from the trespass qua trespass.

While plaintiff’s concern is no doubt a sincere one [Note 50] it will not, in the view of this court, suffice to provide the necessary standing. That is because plaintiff does not allege an injury to “an interest the zoning scheme seeks to protect.” Standerwick, 447 Mass. at 32. See Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427 , 431 (1949) (mandating inquiry into “what peculiar legal rights were intended to be given to plaintiff by the statute permitting an appeal,” when doing standing analysis). See also Massachusetts Ass’n of Indep. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290 , 293 (1977) (holding plaintiff has standing only if there is an “injury within the area of concern of the statute or regulatory scheme under which the injurious action has occurred.”).

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). [Note 51] 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.”). Though the subject of zoning regulations is broad, it is not boundless. [Note 52]

Having surveyed the relevant decisional law, this court concludes that vehicular trespass, as such, without any other tangible, zoning-related harm caused thereby, is not cognizable under the Commonwealth’s zoning laws, and, therefore, does not provide Titanium with standing. See Kane, 273 Mass. at 104 (“[i]t is only indirectly that [zoning laws] conserve private interests.”). See also Standerwick, 447 Mass. at 31 (holding abutter injury must be “related to a cognizable interest protected by the applicable zoning law” to confer standing).

This court reaches this conclusion, both because a contrary ruling could pose the danger that certain other tangentially related bodies of law could be subsumed into the body of land use regulation, and because those other bodies of law may provide parties alternative and more appropriate channels for redress. See in this regard, Isaac v. Zoning Bd. of Appeals of Taunton, 65 Mass. App. Ct. 1113 (2006) (suggesting plaintiff’s “recourse” for defendant’s “unreasonably obstructing” common easement is “through available actions in trespass and nuisance [and not judicial review of the grant of a variance]”); Rinaldi, 50 Mass. App. Ct. at 660 (distinguishing between harms cognizable under zoning law and those invoking the building code). [Note 53] [Note 54]

3. Parking

In plaintiff’s Sur-Reply Brief, it contends that, should the special permit stand, it will be aggrieved by the dearth of parking available in the strip mall parking lot. Plaintiff alleges that the existing number of parking spaces serving Cardinale Plaza is already inadequate. Consequently, Titanium argues that the use proposed by Cardinale would further diminish available parking, with the result that third parties could be moved to park on its (plaintiff’s) property. Such an argument, is at best, purely speculative and without support.

Moreover, it has not been shown that plaintiff has any right or entitlement to these spaces. The plaza as well as its parking resources, are owned by the defendant. See supra, note 2; Bell, 429 Mass. at 554 (opining that the predicate for parking-based aggrievement under § 17 is legal entitlement to the supply of parking that zoning relief threatens to diminish). Instead, this theory of aggrievement hinges on continued trespasses caused by parking-lot overflow.

As evidence for this argument, plaintiff submitted several photographs, depicting an over-crowded parking lot. That a lot has been overcrowded at times in the recent past does not support the notion that the addition of a restaurant will result in a constant overflow situation. Plaintiff provides no competent evidence to support such a conclusion. Moreover, plaintiff’s expert, Conley, made no observations relative to parking and drew no conclusions about parking availability. Accordingly, even if Titanium’s parking related aggrievement were properly cognizable, it would lack the factual support on the record which is necessary to confer standing. Nevertheless, even if this allegation were substantiated with competent evidence, for essentially the same reasons set forth, supra, § B.2, unauthorized parking on its property traceable to a grant of a special permit, is not the type of injury zoning laws are designed to protect. Should plaintiff suffer such a trespass, it may resort to appropriate legal self-help measures or it may alert the local traffic enforcement authorities.

Conclusion

For the foregoing reasons, this court concludes that it lacks jurisdiction with regard to the subject matter of the plaintiff’s Complaint.

Accordingly, it is hereby

ORDERED that defendants’ Motion for Judgment on the Pleadings as converted to a Motion for Summary Judgment is hereby ALLOWED. Judgment to enter accordingly.

SO ORDERED.

By the Court. (Grossman, J.)