BRICE ESTATES, INC. v. TOWN OF RUTLAND PLANNING BOARD, by and through its members MICHAEL SULLIVAN, CHARLES WILLIAMS, THOMAS DUFAULT, NEIL VINER, and NORMAN ANDERSON, and MARCIA WARRINGTON AND CHRIS WARRINGTON

In this action, brought pursuant to G. L. c. 40A, § 17, Plaintiff appeals a decision of the Town of Rutland Planning Board (Board) granting an application for a special permit to Defendants Marcia and Chris Warrington to operate a dance studio on their residential property located at 344 Main Street in Rutland (Defendants’ Property). Plaintiff initiated this action on May 12, 2005, by filing a complaint alleging that the Board’s decision was arbitrary, capricious, and legally untenable. [Note 1] A view of Plaintiff’s and Defendants’ properties was taken by the court on April 2, 2009, and a one-day trial followed on April 3, 2009. At trial this court heard the testimony of Clealand Blair, Jr., the owner, President, and Treasurer of Plaintiff Brice Estates, Inc.; Joseph Roland Evangelista, a real estate appraiser whose testimony was proffered by Plaintiff; Steven F. Spangle, a real estate appraiser testifying for Defendants; and Defendant Marcia Warrington. Eight exhibits and a stipulation of facts were entered in evidence. Plaintiff and Defendants submitted post-trial briefs on June 4, 2009. [Note 2]

Based on the parties’ stipulation of facts, and on all the evidence and reasonable inferences drawn therefrom, and observations from the view, this court finds the following material facts:

1. Plaintiff Brice Estates, Inc., is a Massachusetts corporation with a principal place of business at 87 Main Street in Rutland.

2. Defendants Marcia Warrington and Chris Warrington are individuals and business owners, having both a residence and a principal place of business at Defendants’ Property, which is comprised of approximately eight acres, with frontage on Main Street in Rutland.

3. Main Street, as it passes the parties’ properties, is a major thoroughfare with one lane in each direction.

4. Plaintiff owns property located on Main Street in Rutland near Defendants’ Property, which it acquired through four deeds between 2002 and 2004 (Plaintiff’s Property). Plaintiff is an abutter to an abutter within 300’ of Defendants’ Property.

5. Plaintiff’s Property is the site of a 112-lot residential subdivision to be named Brice-Lemon Estates (Plaintiff’s Subdivision). The subdivision plan, entitled “Definitive Plan, Brice-Lemon Estates,” is dated March 8, 2005, and is recorded with the Worcester County Registry of Deeds in Book 837, at Page 38. Plaintiff submitted to the Board a modification application on January 22, 2009, and a hearing was held on that application in March 2009. As of the date of trial, Plaintiff had not completed its permitting process with boards and agencies other than the Board.

6. Both Plaintiff’s Property and Defendants’ Property are located in a Residential zoning district.

7. On April 12, 2005, the Board voted to grant a special permit to Defendants to permit Defendants to use a portion of their residence on Defendants’ Property as a bed and breakfast (Bed and Breakfast Permit). That same day, the Board granted Defendants a separate special permit to allow the operation of a dance studio in an accessory building on Defendants’ Property (Dance Studio Permit). Both permits were granted pursuant to Section 5.12 of the Zoning By-law for the Town of Rutland (By-law), which allows residents to apply for special permits to operate certain businesses as “Major Home Occupations.” [Note 3]

8. The Board’s decisions were filed as one Decision with the Town Clerk on April 25, 2005. The decision did not contain any findings relative to the grant of the Dance Studio Permit and therefore was remanded to the Board by the court (Lombardi, J.) for supplementation. The Board supplemented its decision with the requested findings by decision dated May 8, 2007 (Decision).

9. Although Defendants did not obtain the Dance Studio Permit until 2005, they had been operating the dance studio on Defendants’ Property since September 25, 1995. They constructed the detached building in which the dance studio is housed pursuant to a building permit issued in June 1995 for a “barn”. The finished building has the appearance of a barn. The dance studio employs fewer than three non-resident employees. Defendant Marcia Warrington is the principal practitioner of the dance studio.

10. Defendants offer dance, aerobics, and other classes at the dance studio. Ms. Warrington sells a few dance related items such as leotards for the convenience of the dance students, but does not sell such items to the general public. The Dance Studio Permit provides that the applicant shall “continue to limit the retail sales to less than 1% of total revenue, or comply with the regulation of not purchasing or obtaining elsewhere more than 25% of the products sold.”

11. The dance studio building has a permitted, non-illuminated sign in the front of the studio building, at the entrance from Main Street. Parking for its customers is on the side of the building which does not face Plaintiff’s Property and is reasonably well-screened.

12. The lot on Plaintiff’s Property nearest to Defendants’ Property is Lot 112, which is approximately 419 feet from Defendants’ Property. It is not yet clear whether Lot 112 will be a buildable lot due to the existence of wetlands. From the point of highest elevation on Plaintiff’s Property, one cannot see the dance studio building on Defendants’ Property. The boundary line of Plaintiff’s Property closest to Defendants’ Property is designated by Plaintiff as open space and cannot be built upon under the currently approved subdivision plan.

13. The operation of the dance studio, as permitted by the Dance Studio Permit, will not cause any harm to Plaintiff’s Property based on the generation of traffic, noise, trash, or lighting.

* * * * *

Plaintiff contends that it will suffer a diminution in the value of Plaintiff’s Property due to Defendants’ operation of the dance studio and that the Decision was arbitrary, capricious, and legally untenable. It does not take issue with the building in which the dance studio is housed, or with its location, but primarily objects to the commercial nature of the use near his residential subdivision. Defendants argue that Plaintiff lacks standing to pursue this action because it has failed to show that it will suffer any cognizable harm as a result of the grant of the Dance Studio Permit and that, even if Plaintiff has standing to appeal the Decision, it was proper and within the Board’s reasonable authority under the By-law.

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 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 Decision. Following denial of Defendants’ Motion to Dismiss with respect to Brice Estates, the parties to this action agreed that the issue of Plaintiff’s standing would be tried along with the merits of the appeal. Based on the evidence at trial, informed by observations at the view, this court finds that Plaintiff does not have standing to bring the instant appeal because it has failed to show aggrievement. Plaintiff has not alleged specific harm, such as traffic impact, but has alleged generally that the value of its property and its ability to market subdivision lots will be diminished as a result of operation of the dance studio pursuant to the Dance Studio Permit. Plaintiff has failed to carry its burden with respect to its allegation of specific harm and diminution of value.

As an abutter to an abutter within 300 feet of Defendants’ Property, Plaintiff is a party-in-interest. Parties-in-interest 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, a 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 adequately rebutted Plaintiff’s presumption of aggrievement through the documentary evidence submitted as part of its case-in-chief and the expert testimony of Steven F. Spangle, a licensed real estate appraiser with twenty years of experience appraising residential subdivision properties. Mr. Spangle appraised Plaintiff’s Property by comparing it to other large, developable tracts of land located 300 feet or more from a commercial use, examining the building and occupancy permits for Defendants’ Property, and viewing Defendants’ Property and its proximity to Plaintiff’s Property. He testified that Plaintiff’s Property would not suffer a diminution in value as a result of the use allowed by the Dance Studio Permit.

Based on that testimony, bolstered by observations from the view, and the documents submitted as part of the Board’s file, [Note 4] this court found the testimony of Defendants’ expert 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)). To do so, requires that Plaintiff establishes by direct facts and not by speculative personal opinion that its injury is “special and different from the concerns of the rest of the community.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006). Standerwick instructs that in order to establish standing, Plaintiff must set forth a “plausible claim” that the zoning relief challenged will violate a private right the plaintiff possesses. Id. at 27. Despite the low bar to establish a “plausible claim,” this court finds that Plaintiff failed to introduce any credible evidence to support its claim of aggrievement once the presumption in its favor receded. As a result, this court concludes that Plaintiff does not have standing to bring this appeal.

Recent case law instructs 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 v. Zoning Bd. of Appeals of Newburyport, 412 Mass. 719 , 724 (1996); Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994)). Although Plaintiff proffered expert and lay testimony to the effect that Plaintiff’s Property will diminish in value as a result of the issuance of the Dance Studio Permit, the court finds that the testimony was insufficient both quantitatively and qualitatively to establish Plaintiff’s standing. See Michaels v. Zoning Bd. of Appeals of Wakefield, 71 Mass. App. Ct. 449 (2008).

Plaintiff offered the testimony of Joseph Evangelista, a licensed real estate appraiser. His testimony was limited to the dance studio’s effect on Lot 112, the lot closest to Defendants’ Property. Mr. Evangelista holds a residential real estate appraiser’s license, limited to appraising one to four family properties under one million dollars in the context of and for federally regulated transactions. He testified that he had performed only 15 to 17 appraisals that did not involve one to four family properties in his roughly twenty-three year career. Mr. Evangelista’s testimony focused in part on the fact that the Dance Studio Permit does not restrict the uses to which the dance studio may be put. His concern, which was articulated also by Plaintiff’s President, Clealand Blair, Jr., amounted to unsubstantiated opinion that appeared to assume that the nature and type of dance instruction performed at the dance studio would change over time. In addition, Mr. Blair testified, without support, that the commercial use of Defendants’ Property would per se diminish the value of Plaintiff’s Property. While he testified that he was aware of the building’s existence when he bought his subdivision property, he was unaware of the actual use of the building. The evidence, however, established that Defendants’ signage has been in place on Main Street since 1998.

In its post-trial brief, Plaintiff argues that the dance studio might someday be used to teach “adult or exotic dancing, such as erotic or strip-tease dancing, pole-dancing, belly dancing, ballet, ballroom dancing, [or] ‘break’ dancing.” It also argues that because the Dance Studio Permit is “unlimited,” the instructors, who to date have only used minimal equipment such as pilates balls, could install and use treadmills, weight machines, and other gymnastic equipment. While it is true that the Dance Studio Permit does not set forth many conditions or detail, the special permit was issued based on Defendants’ application, and must be viewed so as to incorporate the requests set forth therein. The application asked for permission to conduct dance instruction and “instruction of dance and fitness” and specifically asked the Board to grant a permit for Defendants to “continue operating my studio in the same capacity as it has been operating for the last 10 years.” With respect to the current uses as established at trial, both as to the level of activity and the type of use, Plaintiff’s case regarding particularized harm to Plaintiff’s Property was wholly insufficient. It lacked specific factual support, it was speculative, and not of the type on which a reasonable person could rely to establish Plaintiff’s standing.

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 5]

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: November 20, 2009