90 EXCHANGE LLC BY ITS MANAGING MEMBER, JONATHAN BEDARD vs. MAYO GROUP DEVELOPMENT, LLC and JOHN TIMOTHY PHELAN, RICHARD J. FORD, PAUL T. CROWLEY, LORETTA CUFFE-O’DONNELL, CHARLES T. O’BRIEN, WAYNE A. LOZZI, WILLIAM R. TRAHANT, JR., DARREN P. CYR, RICHARD C. COLUCCI, PAULA M. MACKIN, and PETER L. CAPANO, as they are the members of the CITY COUNCIL OF THE CITY OF LYNN

Plaintiff 90 Exchange LLC, through its Manager Jonathan Bedard (“Bedard”), filed its Verified Complaint with the Essex Superior Court (Civil Action No. 7-2194) on November 16, 2007, appealing pursuant to G. L. c. 40A, § 17, a decision of Defendant City Council of the City of Lynn (the “City Council”) granting an amendment to a pre-existing special permit. [Note 1] The City Council filed its Answer and Jury Demand on December 5, 2007. [Note 2] This case was transferred to the Permit Session of the Land Court (08 PS 381683) on June 20, 2008, and a case management conference was held on August 15, 2008. The City Council and Defendant Mayo Group Development, LLC (“Mayo”) (together, “Defendants”) filed their Motion for Summary Judgment on March 16, 2009, together with supporting memorandum, Statement of Undisputed Facts, and Affidavits of Timothy N. Schofield, Esq. and Taran T. Grigsby, Esq. Plaintiff filed its Cross-Motion for Summary Judgment and Opposition to Defendants’ summary judgment motion on April 16, 2009, together with supporting memorandum, Concise Statement of Material Facts, and Affidavits of Bedard, George E. Richardson, Esq. and Gennadiy Itskin (Director of an adult day care center located at 80 Exchange Street). Defendants filed their Opposition to Cross-Motion on May 18, 2009, together with supporting memorandum. On June 8, 2009, Defendants filed their Motion to Strike Portions of the Affidavit of Bedard. Plaintiff filed its Opposition to Mayo’s Motion to Strike on June 23, 2009. A hearing was held on all motions on June 24, 2009, 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. Plaintiff owns two residential units and three commercial units (“Plaintiff Property”) in the condominium known as and numbered 90 Exchange Street, Lynn, Massachusetts, and Bedard resides in one of the residential units (Unit LL2).

2. Robert T. Howard conveyed property located at 24 Mt. Vernon Street, Lynn, Massachusetts (“Locus”) to Andrew Perkins, Trustee of the Mt. Vernon 24 Trust (“Perkins”) on March 29, 2004. Perkins conveyed Locus to Mayo on June 29, 2005. Locus is in an area zoned Central Business District. Prior to March 29, 2004, the building on Locus was used as a commercial building, primarily as a warehouse. Locus abuts Plaintiff Property.

3. Locus benefits from an existing special permit (the “Special Permit”) issued by the City Council on July 29, 2004. The use listed on the application (the “Application”) for the Special Permit was an “[a]rtist work/living space on all levels including first level and all above ground levels including fourth and fifth level if added to existing building.” The Application requested “the construction of a two (2) story addition to the existing structure, said addition to increase the building over the current maximum height limitation of 60' but less than 70' to be used as Artist work/living space.” The Special Permit allowed a conversion of the building into a thirty-two unit, multi-family residence. The Special Permit was not appealed. The thirty-two units have been constructed.

4. Plaintiff and Mayo executed a Temporary Construction Easement dated November 2006 whereby Plaintiff gave Mayo the right to use portions of Plaintiff Property for access for construction on Locus.

5. On September 7, 2007, Mayo filed a petition to amend the Special Permit (the “Amendment”) to increase the allowable number of units from thirty-two to forty-nine. The Amendment is based on a reconfiguration of the existing internal units rather than the construction of an external addition to the building. Bedard testified in favor of the Amendment at the City Council hearings. By decision dated October 30, 2007, the City Council approved the Amendment.

**************************

I. Mayo’s Motion to Strike.

Prior to this court’s review of Plaintiff’s standing, it must first address Mayo’s Motion to Strike Portions of the Affidavit of Bedard, in which Mayo seeks to strike various paragraphs of Bedard’s Affidavit (the “Affidavit”). Mayo seeks first to strike paragraphs 2-8 of the Affidavit, which Mayo argues Bedard included to establish himself as an expert in real estate appraising. This court shall allow these paragraphs to remain, but only as facts of Bedard’s education and experience and not as conclusive as to his establishment as an appraisal expert. This court shall give weight to Bedard’s background as it deems appropriate.

Mayo also argues, and this court agrees, that much of the Affidavit is speculative and contains opinions that are not warranted by Bedard’s educational background. In particular, there has been no foundation for the opinion that the value of Plaintiff Property has been diminished. Many of Bedard’s opinions are based on legal conclusions that the affiant is not competent to give, or based on an interpretation of documents that speak for themselves. Finally, there is no foundation for, and speculation relative to, many of the statements that the affiant makes in connection with parking in the area, maintenance of buildings, increased litter and potential for rats, and future construction of buildings. Finally, with respect to photographs attached to the Affidavit, Plaintiff has given no foundation to indicate when the photographs were taken or who took the photographs. As a result of the foregoing, Mayo’s Motion to Strike Portions of the Affidavit is ALLOWED IN PART, as the following paragraphs of the Affidavit are hereby stricken: 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 40, 41, 42, 47, 48, 49, 50, 52, 53, 54, 55, 56, 57, 59, and 60. [Note 3]

II. Standing.

As their briefs indicate and as Plaintiff and Mayo agreed at the summary judgment hearing, this decision is limited to Plaintiff’s standing. Defendants challenge Plaintiff’s standing in this case, while Plaintiff alleges that it has presumed standing and that it has articulated sufficient harms to remain in the case. [Note 4]

“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 5] 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.

Plaintiff is an abutter to Locus and thus is a party in interest pursuant to G. L. c. 40A, § 11 and has presumed standing to challenge the Amendment. With respect to the presumed standing of Plaintiff, the burden shifts to Defendants to produce credible evidence to rebut the harms alleged by Plaintiff. 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). Plaintiff did not allege any harms in its Verified Complaint, Amended Complaint, case management statement, or its answers to interrogatories. In its deposition, however, Plaintiff identified the following harms as affecting the value of Plaintiff Property: increases in the amount of trash generated, increases in traffic and reduction of parking spaces, privacy concerns relative to the use of a roof deck on Locus, [Note 6] the negative impact of the artist living/work space units on the neighborhood “feel,” and the negative impact of the Amendment on potential future development by Plaintiff based on stricter setback requirements. Plaintiff relies primarily on the Affidavit in this regard to support its articulated harms. As discussed, supra, much of the Affidavit has been stricken. In addition, Bedard is the Plaintiff and many of his allegations are self-serving. [Note 7] Moreover, Bedard is not qualified as an expert of any kind.

A. Trash.

Although the Appeals Court has indicated that “the potential for litter” is a legitimate zoning concern, there must be some connection between the alleged harm and Locus, as “a plaintiff must . . . offer more than conjecture and hypothesis.” Barvenik, 33 Mass. App. Ct. at 133. [Note 8] Plaintiff’s allegations of increased trash at Locus is speculative and not supported by the evidence. Plaintiff represents, through photographs with no foundation, that the existing dumpster on Locus has overflowed and litter has blown onto Plaintiff Property. There is no evidence of when the photographs were taken or who placed trash there. Plaintiff also represented that there was a rat problem in the area, but gave no evidence to support the cause of the rat problem and whether it was connected to litter from Locus.

B. Traffic and Parking.

Plaintiff alleges that it will be harmed by increased traffic and decreased parking, which are recognized interests protected by zoning, Marashlian, 421 Mass. at 722, provided that they are specific harms to Plaintiff. Butler, 63 Mass. App. Ct. at 440. Plaintiff, however, has not produced any credible evidence to support its allegation other than speculative statements in the Affidavit. [Note 9] The Affidavit does not give any evidence that decreased on-street parking will harm Plaintiff Property. Bedard also stated that people are parking too close to the driveway at Plaintiff Property, or parking in front of fire hydrants, but gave no supporting evidence in this regard. Plaintiff has also produced an affidavit from Gennadiy Itskin (“Itskin”), the director of neighboring Lynn Zabota Adult Day Care, to support its argument of difficult on-street parking in the neighborhood. However, Itskin is not a licensed traffic engineer and is unqualified to provide this court with expert testimony as to traffic harms. Furthermore, Itskin simply states that there is inadequate off-street parking at her place of business and that her employees “often have difficulty” finding nearby street parking. In no way does this testimony connect parking difficulties to Locus, nor does it assist Plaintiff in identifying a particularized harm. As appropriately stated in Harvard Square Defense Fund, 27 Mass. App. Ct. at 493, “[s]ome of the plaintiffs identify area parking problems as an indication of a legally protected right which will be violated by the reduction allowed in the number of parking spaces which would have been required by the zoning ordinance. This claim has not been substantiated.” [Note 10]

C. The Special Permit’s Impact on the Neighborhood’s “Feel” and Density.

Several of Plaintiff’s supposed harms come not from the Amendment but rather relate back to the issuance of the Special Permit. The alleged injury caused by the original conversion of Locus from commercial to residential use has no basis as a recognized aggrievement for several reasons. First and foremost, the Special Permit was not appealed. Additionally, the Amendment only allows a reconfiguration of the units to increase the number of units, and not any addition to the building. In addition, the allegation that the residential use requires a greater degree of building maintenance which will harm Plaintiff is purely speculative, has no foundation, and is not supported by any evidence in the record. [Note 11]

In support of its position that the Amendment confers it standing, Plaintiff cites to Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 (2009). In Sheppard, the trial court found that the neighborhood at issue was “an established, densely populated neighborhood,” and that the local zoning code protected the overcrowding of land. Id. at 10. The Appeals Court noted that “[a]n abutter has a well-recognized legal interest in ‘preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow.’” Id. at 11-12 (quoting Standerwick, 447 Mass. at 31). However, the facts of the case at bar provides an imperfect analogy to Sheppard. First, whereas the variances at issue in Sheppard authorized the construction of structures on an overbuilt parcel, id. at 9, the Amendment will not change the existing footprint or vertical profile of the building on Locus. Furthermore, in the case at bar, there has been no finding, and Plaintiff did not present facts to warrant such a finding, that the zoning district of Locus was more densely populated than the local ordinance allows. [Note 12] Moreover, while the Amendment will increase the density of the units on Locus, which is a legal interest protected by the local zoning ordinance, Plaintiff has failed to provide evidence that this increase in density will lead to aggrievement. The summary judgment record is absent of credible evidence that links the increase in density to harms of a protected zoning interest. [Note 13] Plaintiff neither identifies evidence of a type that a reasonable person could rely on to “conclude that the claimed injury likely will flow” from the Amendment (i.e. qualitative evidence), nor does Plaintiff supply quantitative evidence that details “specific factual support for each of the claims of particularized injury” that Plaintiff has made. Butler, 63 Mass. App. Ct. at 441.

D. Impact of the Amendment on Future Development.

With respect to setback issues relative to the building on Locus, such issues have already been resolved by the Special Permit, which was not appealed. The Amendment does not increase the footprint of the building or change the building setback. Similarly, Plaintiff argues that the setback may require it to limit future development plans. In addition to having already been resolved by the Special Permit, there is no foundation for such argument, and such argument is purely speculative.

E. Diminution in Value.

Finally, with respect to valuation of Plaintiff Property, Plaintiff provides no independent evidence as to valuation other than his own personal view that Plaintiff Property’s value will suffer as a result of the Amendment. Besides the fact that Bedard is not a licensed real estate appraiser, Plaintiff’s conclusion that the value of Plaintiff Property will be diminished is based upon those alleged harms that this court has addressed, and dismissed, supra. In other words, Plaintiff has failed to “tether” its claimed diminution in value to a protected zoning interest. See Standerwick, 447 Mass. at 31-32.

As a result of the foregoing, I find that Plaintiff has provided little but speculation with no credible evidence, as to any of its alleged harms. Consequently, I find that Plaintiff does not have standing in this case as a “person aggrieved.”

In light of the above, Plaintiff’s Motion for Summary Judgment is DENIED, and Defendants’ Cross-Motion for Summary Judgment is ALLOWED.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: November 16, 2009