ROBERT E. MARHEFKA and LINDA MARHEFKA vs. ZONING BOARD OF APPEALS OF THE TOWN OF SUTTON, ARTHUR KEOWN, RICHARD DESCHENES, JEFFREY FENUCCIO, GERALD PAGE, RUSSELL SYLVIA, as they are members of the TOWN OF SUTTON ZONING BOARD OF APPEALS, ROSEANNE LaBARRE, JOHN SCOTT

Plaintiffs filed their unverified Complaint on December 5, 2007, appealing a decision of Defendant Sutton Zoning Board of Appeals (“ZBA”) which granted a dimensional variance (the “Variance”) to Defendants Roseanne LaBarre and John Scott (“LaBarre/Scott”). A case management conference was held on February 26, 2008. LaBarre/Scott filed their Answer on March 5, 2008.

On July 17, 2008, LaBarre/Scott filed their Motion for Summary Judgment, together with supporting memorandum and Appendix, including Affidavits of Maria Hopkins (licensed appraiser) and Roseanne LaBarre (first), and portions of depositions of Robert E. Marhefka and Roseanne LaBarre. The ZBA filed its Motion for Summary Judgment on July 28, 2008, relying on LaBarre/Scott’s memorandum. On August 14, 2008, Plaintiffs filed their Cross-Motion for Summary Judgment and Opposition to LaBarre/Scott’s motion and the ZBA’s motion, together with supporting brief and Appendix, including Affidavits of Robert E. Marhefka (first) and Robert D. O’Neil, Jr. (professional land surveyor), appraisal of Robert Tolland, and a portion of the deposition of Robert E. Marhefka. LaBarre/Scott filed their Opposition to Plaintiffs’ motion and their Reply to Plaintiffs’ Opposition on September 17, 2008, together with Appendix, including the Affidavit of Roseanne LaBarre (second). On September 25, 2008, Plaintiffs filed their Reply Brief to LaBarre/Scott’s Opposition, together with Affidavits of Robert E. Marhefka (second). On the same day, Plaintiffs filed their Reply to Plaintiffs’ Statement of Facts. A hearing was held on all motions on October 6, 2008, at which time all motions were taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. LaBarre/Scott purchased property located at 20 Pine Point Drive, Sutton, Massachusetts (“Locus”), on October 17, 2005.

2. Plaintiffs purchased property located at 19 Pine Point Drive, Sutton, Massachusetts, on September 20, 1997. Plaintiffs directly abut Locus.

3. On July 13, 2007, LaBarre/Scott filed an application with the ZBA for the Variance to allow the construction of a garage 6.6 feet from the front property line. The Zoning Bylaw of the Town of Sutton (the “Bylaw”) requires a fifty-foot front yard setback. On November 8, 2007, the ZBA unanimously granted the Variance.

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Plaintiffs assert that they have standing to challenge the Variance and that the decision of the ZBA to grant the Variance was arbitrary, capricious, and unreasonable. Conversely, LaBarre/Scott and the ZBA argue that Plaintiffs lack standing, and that the decision of the ZBA in granting the Variance was valid. I shall address each of these issues in turn.

Standing.

“Only a ‘person aggrieved’ may challenge a decision of a zoning board of appeals.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); G. L. c. 40A, § 17. A plaintiff is presumed to be a “person aggrieved” if it is a “party in interest” pursuant to G. L. c. 40A, § 11. [Note 1] Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). A presumption of standing is rebuttable. See Watros v. Greater Lynn Mental Health and Retardation Ass’n, Inc., 421 Mass. 106 , 111 (1995). In order for a defendant to rebut the presumption of standing, a defendant must offer evidence “warranting a finding contrary to the presumed fact.” Id. In the summary judgment context, “[i]t is enough that the moving party ‘demonstrate by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving’ a legally cognizable injury.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35 (2006). If standing is properly challenged, standing is then decided on “all the evidence with no benefit to the plaintiff from the presumption.” Marotta, 336 Mass. at 204. See also Marashlian, 421 Mass. at 721 (“A review of standing based on ‘all the evidence’ does not require that the factfinder ultimately find a plaintiff’s allegations meritorious. To do so would deny standing, after the fact, to any unsuccessful plaintiff”). Without the presumption, “individual . . . property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989). “To qualify for that limited class, a plaintiff must establish – by direct facts and not by speculative personal opinion – that his injury is special and different from the concerns of the rest of the community.” Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). See also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (noting that the plaintiff’s injury flowing from the board’s decision must be “special and different from the injury the action will cause to the community at large”). To assert a plausible claim, a “plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. “Credible evidence” consists of

both a quantitative and a qualitative component . . . . 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, 63 Mass. App. Ct. at 441.

Plaintiffs directly abut Locus and, thus, are parties in interest pursuant to G. L. c. 40A, § 11 and are presumed to have standing to challenge the Variance. As Plaintiffs have presumed standing, the burden shifts to LaBarre/Scott to produce evidence to rebut the harms alleged by Plaintiffs. In this regard, Standerwick points out that

[i]n a summary judgment context, a defendant is not required to present affirmative evidence that refutes a plaintiff’s basis for standing . . . (material supporting motion for summary judgment ‘need not negate, that is, disprove, an essential element of the claim of the party on whom the burden of proof at trial will rest’ but ‘must demonstrate that proof of that element at trial is unlikely to be forthcoming’). It is enough that the moving party ‘demonstrate[], by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving’ a legally cognizable injury.

Standerwick, 447 Mass. at 35 (quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1974)). See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (finding that the defendant successfully rebutted plaintiff’s presumed standing where plaintiff “failed to offer any evidence of ‘a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest’ necessary to challenge the permit at issue) (quoting Harvard Square Defense Fund, 27 Mass. App. Ct. 491 at 493).

In Plaintiffs’ Complaint, they alleged harms related to loss of view of Ramshorn Pond and diminution of value of their property based on such loss of view. In their summary judgment brief, LaBarre/Scott produced affidavit testimony of Maria Hopkins, a licensed appraiser in the Commonwealth of Massachusetts, together with her report, in which she concludes that there is no diminution in value of Plaintiffs’ property caused by the Variance. As a result, LaBarre/Scott have produced sufficient evidence to challenge Plaintiffs’ presumption of standing, and this court must now consider all evidence regarding to the issue of standing.

With respect to sworn evidence relative to their alleged harms, Plaintiffs have supplied two affidavits (from Robert E. Marhefka and Robert D. O’Neil, Jr.), and parts of one deposition of Plaintiff Robert E. Marhefka. [Note 2] Plaintiffs first allege that views are a protected interest under the Bylaw, and that their view of Ramshorn Pond is affected by the Variance. However, a review of the Bylaw does not indicate that views are protected. Specifically, Plaintiffs cite Section IV.K.1 of the Bylaw, which states that a goal of the Bylaw is to “protect scenic vistas from the town’s roadways and other places.” This provision, however, is not adequate to protect individual views.

Plaintiffs further rely upon Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 (1993), in support of their argument that water views are a protected interest. However, such reliance is misplaced. To begin, Tsagronis was interpreted by the Supreme Judicial Court as conferring standing upon plaintiffs on the basis of increased density in an already too-dense zoning district. Standerwick, 447 Mass. at 31. This increase in density was the cause of plaintiffs’ spoiled water views and the protected zoning interest that allowed for a determination of standing. [Note 3] Moreover, Plaintiffs’ position ignores that a view must be a protected interest under the Bylaw in order to qualify as a protected property right in context of standing pursuant to G. L. c. 40A, § 17. See Sheehan, 65 Mass. App. Ct. at 55 (upholding trial judge’s conclusion that “the bylaw created additional protected . . . harbor-view . . . interests sufficient to provide . . . standing”). In light of the above, I find that views are not a protected interest under the Bylaw. Plaintiffs also allege harm in the form of diminution of value caused by their loss of view. However, diminution of value, which can be a protected interest in certain circumstances, must be directly related to a harm that is protected.

A claim of diminution of property values must be derivative of or related to cognizable interests protected by the applicable zoning scheme. . . . To untether a claimed diminution in real estate values from an interest the zoning scheme seeks to protect would permit any abutter who claims that any change in property use would diminish the value of property to obtain standing to challenge a zoning decision.

Standerwick, 447, Mass. 20 at 31-32 (internal citation omitted).

In the case at bar, I find that because the alleged harm of diminution of value is directly tied to views, which themselves are not a protected interest under the Bylaw, the allegation of diminution of value is inadequate to confer standing upon Plaintiffs. [Note 4]

Variance.

As Plaintiffs lack standing, this court need not address the substance of the parties’ arguments with respect to the ZBA’s issuance of the Variance.

In light of the foregoing, Plaintiffs’ Cross-Motion for Summary Judgment is DENIED and LaBarre/Scott’s and the ZBA’s Motions for Summary Judgment are ALLOWED.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: November 12, 2009