DIANNE CHURCHILL a/k/a DIANNE CHURCHILL NIEBOER v. JANET P. MURPHY, as Trustee of FISH LANE REALTY TRUST, and NANCY SEVRENS, DALE WAINE, MICHAEL J. O’MARA, KERIM KOSEATAC, and EDWARD TOOLE, as they are members of the NANTUCKET ZONING BOARD OF APPEALS

This case, filed July 3, 2008, represents the second time the property located at 5 Spring Street, Nantucket (Trust Property) has been the subject of a case in this court. In this action, brought pursuant to G. L. c. 40A, § 17, Plaintiff, who owns property abutting the Trust Property, appeals a decision of the Nantucket Zoning Board of Appeals (Board) granting an application for a special permit to Defendant Murphy to construct a residence on the Trust Property. Prior to this action, Defendant Fish Lane Realty Trust (Trust) had commenced a Land Court action (07 MISC 356357) (First Case). In the First Case, the Trust appealed a decision of the Board that upheld a determination of the Nantucket Zoning Enforcement Officer that the Trust could not build on the Trust Property without zoning relief from the Board. That determination was upheld by the Board, which also granted the Trust the dimensional relief the Trust needed, with conditions. The Trust, unsatisfied with the conditions, filed the First Case.

After the case management conference in the First Case, and in light of the January 2008 Supreme Judicial Court decision in Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 (2008), counsel for the Trust and the Town agreed that the Trust would modify its plan and reapply to the Board, which would hear the new application on remand. The Trust did modify its plan, reducing the scope of the proposed construction to comply with the dimensional requirements of the Nantucket Bylaw, and submitted the revised application for a special permit to the Board. On April 11, 2008, and May 9, 2008, in accordance with the remand order, the Board held a duly-noticed public hearing on the revised application. The Board subsequently issued the special permit (Special Permit) which is the subject this action. The Special Permit allows the “demolition and reconstruction of the existing 2-unit structure, allowing a new two-unit residential structure to be built. . . .” [Note 1]

Prior to trial, the Board filed a “Motion to Preclude, to Strike and/or to Compel” and Defendant Murphy filed a “Motion to Compel.” Both motions sought an order from this court compelling Plaintiff to respond to discovery requests or, in the alternative, to preclude Plaintiff from introducing at trial any evidence that should have been produced but was not. At the case management conference in this action, held October 23, 2008, counsel for the Board informed this court that discovery had been propounded on Plaintiff on August 19, 2008, and had not been answered. At that time, following discussion, the court issued an order requiring Plaintiff to answer all outstanding discovery by November 24, 2008, a date nearly two months after the discovery was due under the Rules of Civil Procedure. Plaintiff still failed to make any substantive answers to discovery and Defendants’ motions followed on December 30, 2008. The court held a hearing on both motions on January 12, 2009, at which all parties were heard. Subsequently, the court ordered that “Ms. Churchill [was], and will be, precluded from introducing at trial any testimonial or documentary evidence which should have been produced in response to Defendants' Requests for Production of Documents or Interrogatories.” The court further ordered that the Board and Defendant Murphy were not required to answer Plaintiff’s requests for discovery, as they had not been not timely served.

A one-day trial was held on March 17, 2009. At trial this court heard the testimony of Edward Murphy, beneficiary of the Trust; Thomas S. Quirk, the Trust’s builder; Steven Backus, a real estate appraiser; Plaintiff Dianne Churchill; and Richard Niebor, Plaintiff’s husband. Twenty-five exhibits and a stipulation of facts were entered in evidence. All parties submitted post-trial briefs by May 22, 2009. Based on all the evidence and reasonable inferences drawn therefrom this court finds the following material facts:

1. Defendant Janet P. Murphy is the Trustee of Fish Lane Realty Trust which owns the Trust Property. The Trust Property is shown on a plan endorsed by the Planning Board as “Approval Under the Subdivision Control Law Not Required” on January 10, 2005, and recorded with the Nantucket Registry of Deeds as Plan No. 05-12.

2. Plaintiff owns and resides at 6 Beaver Street, Nantucket (Plaintiff’s Property), the rear yard of which abuts the rear yard of the Trust Property.

3. The Trust Property is located in the Residential Old Historic zoning district (ROH District), which requires a minimum lot size of 5,000 square feet, fifty feet of frontage, and side-yard setbacks of five feet. The Trust Property has twenty feet of frontage.

4. The current structure on the Trust Property is located 2.7 feet from the adjacent property to the west. The existing structure consists of a 1 ½ story building, approximately twenty feet at the ridge line, with a kitchen, sitting area, and bathroom on the first floor and a bedroom on the second floor. The proposed structure is located so as to comply with the setback requirements of the Bylaw.

5. The existing structure on the Trust Property had been used for residential purposes since before 2004, and has been used by Murphy for residential purposes since his purchase. [Note 2] It has been used by Murphy as a rental unit, and as a guest house for guests including family.

6. The Special Permit is subject to the following conditions: (a) the total lot coverage cannot exceed 577 square feet; (b) the habitable space cannot exceed 1,154 square feet; (c) the building height is not to exceed 25’[feet] above elevation 8’ [feet]; (d) no exterior construction shall take place between June 25th and September 15th in any year; and (e) no exterior construction shall occur prior to 8:00 a.m. nor after 5:00 p.m. for the duration of the project.” As permitted, the new structure will eliminate the noncompliance of the current structure with respect to setbacks.

7. As required for properties located within the ROH District, the Trust has received approval for its proposed construction from the Nantucket Historic District Commission.

8. The proposed structure will be situated on the Trust Property in such a way that no part of the structure will lie between Plaintiff’s Property and the view of the ocean. However, the proposed construction will likely slightly interfere with Plaintiff’s view of the creek that runs along Orange Street.

9. The fair market value of Plaintiff’s Property prior to the grant of the Special Permit was approximately $1,525,000.00. The value of Plaintiff’s Property is not, and will not be diminished, by the construction authorized under the Special Permit.

10. The Bylaw do not designate “view” as a protected interest. Plaintiff has no easement or deeded right to protect her view across the Trust Property.

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Plaintiff contends that the Board’s decision was arbitrary, capricious, and legally untenable primarily because the Board relied on an improper ANR plan in approving the Special Permit. Defendants argue that Plaintiff lacks standing to pursue this action because she has failed to show that she will suffer any cognizable harm as a result of the grant of the Special Permit and that, even if Plaintiff has standing to appeal the Board’s decision, the decision was nonetheless proper and wholly within the Board’s reasonable authority under the Zoning Act and the Bylaw.

An appeal of a municipal board’s decision on an application for a variance or special permit is heard de novo, with the court considering all evidence pertinent to the authority of the board’s action. Pendergast v. Board of Appeals, 331 Mass. 555 , 558-59 (1954). In accordance with the requirements of G. L. c. 40A, § 17, this court has made independent findings of fact without limiting itself to (or consideration of) the presentation at the public hearing before the Board or affording evidentiary weight to the Board’s findings of fact. Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 , 114 (1985). This court may only disturb the Board’s decision if it is “based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 515-16 (1976).

This court does not have jurisdiction to hear the merits of Plaintiff’s appeal unless Plaintiff has standing as a party aggrieved by the Board’s decision. Based on the evidence at trial, this court finds that Plaintiff does not have standing to bring the instant appeal for two reasons. First, Plaintiff has failed to show that her property value will be diminished as a result of any construction authorized by the Special Permit. Second, even assuming Plaintiff could show that her property value would be diminished, that diminution of value is based on Plaintiff’s alleged loss of her view, which is not a protected interest under the Bylaw. In order to establish standing, the alleged diminution of value must be tied to a legal interest that is recognized and protected by zoning. See Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20 , 27-28 (2006).

Plaintiff is an abutter to the Trust Property. Abutting property owners are deemed “persons aggrieved” and afforded a well-established evidentiary presumption of standing under G. L. c. 40A, §§ 11 and 17. Bedford v. Trustees of Boston University, 25 Mass. App. Ct. 372 , 376 (1988). In order to rebut a plaintiff's presumption, the defendant must come forward with enough facts to warrant a finding contrary to the presumed fact of aggrievement. Watros v. Greater Lynn Mental Health and Retardation Assoc., Inc., 421 Mass. 106 , 111 (1995). This court finds that Defendants have adequately rebutted Plaintiff’s presumption of aggrievement through the expert testimony of Steven Backus, a licensed real estate appraiser with twenty-one years of experience. Mr. Backus, who has performed over 8,000 appraisals, appraised Plaintiff’s property using both the Cost Approach and a Comparative Sales approach. He valued Plaintiff’s Property at approximately $1,525,000 and testified that Plaintiff’s Property would not suffer a diminution in value as a result of the proposed construction on the Trust Property. This court credits Mr. Backus’ testimony on this point. Based on that testimony and the other primarily documentary evidence on point, including photographs and the assessor’s plan, this court holds the evidence sufficient to “[shift] the burden [to] the plaintiff to prove jurisdictional facts.” Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 709-10 (2004) (quoting Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505 , 516 n.13 (2002)). This court finds that Plaintiff failed to introduce any credible evidence to support her claim of aggrievement once the presumption in her favor receded.

It is well-settled that credible evidence has both a quantitative and a qualitative element. “Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s action. Conjecture, personal opinion, and hypothesis are therefore insufficient.” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005) (emphasis added) (citing Marashlian, 421 Mass. at 724; Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994)). Although Plaintiff testified that she and her husband, who is not a party this action, believe that Plaintiff’s Property will diminish in value if the proposed construction is allowed on the Trust Property, this personal opinion is not quantitatively nor qualitatively sufficient to establish standing in the face of the Trust’s challenge.

For reasons detailed above, Plaintiff was precluded from introducing her own expert testimony as to diminution in value. However, Plaintiff did attempt to prove her aggrievement through her cross-examination of Mr. Backus, by inquiring as to whether the proposed construction on the Trust Property would interfere with her view of the creek along Orange Street, located in a mixed residential/commercial area. While Mr. Backus conceded that this view may be interrupted by the proposed construction on the Trust Property, he reiterated that there would be no corresponding diminution in the value of Plaintiff’s Property, even assuming the creek view were interrupted because the value to Plaintiff’s Property attributable to “view” flows from the view toward the ocean, which is not impeded by the proposed construction. Accordingly, Plaintiff has failed to establish aggrievement sufficient to prove her standing in the face of Defendants’ challenge.

Furthermore, even assuming arguendo that Plaintiff had established that her property would diminish in value, Plaintiff has failed to show that any harm she would suffer is tethered to a cognizable zoning interest. In order to prove standing, plaintiffs must identify the interest that they claim will be affected and “[o]f particular importance, the right or interest asserted must be one that the statute under which a plaintiff claims aggrievement intends to protect.” Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20 , 27-28 (2006), and cases cited. The Bylaw does not recognize “view” as a protected zoning interest. Consequently, any diminution in value Plaintiff claims would result from the interruption of her creek view is not of a type that is intended to be protected by the Zoning Act and cannot serve as the basis for Plaintiff’s standing, even if adequately proven. [Note 3] As a result, this court finds that Plaintiff has failed to allege sufficient harm as a basis for standing to bring this action. Therefore, Plaintiff’s complaint must be dismissed. [Note 4]

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: October 23, 2009