PETER HALLOCK, EDWIN J. DEADRICK, and MARY ANNE HALL DEADRICK [Note 1] vs. CHATHAM ZONING BOARD OF APPEALS, ROBERT JEFFREY CHANDLER, and JAYNE KERRY CHANDLER

Plaintiffs filed their unverified Complaint on December 31, 2007, appealing pursuant to G. L. c. 40A, § 17 a decision of Defendant Town of Chatham Zoning Board of Appeals (the “ZBA”) which granted a special permit (the “Special Permit”) to Defendants Robert Jeffrey Chandler and Jayne Kerry Chandler (the “Chandlers”). Plaintiffs filed a First Amended Complaint on January 3, 2008, correcting a factual issue. After this court allowed Plaintiffs’ Motion to Amend Complaint, a Second Amended Complaint was filed on March 5, 2008, which added a count under G. L. c. 240, § 14A, challenging the interpretation of Section V.B (“Section V.B”) and Section IV.A.3 (“Section IV.A.3”) of the Town of Chatham (the “Town”) Zoning By-law (the “By-law”). A case management conference was held on March 5, 2008. The Chandlers filed an Answer to the Second Amended Complaint on March 25, 2008. The ZBA filed its Answer to Second Amended Complaint on March 27, 2008.

The Chandlers filed their Motion for Summary Judgment on May 16, 2008, together with supporting memorandum, Statement of Undisputed Facts, Appendix, and Affidavit of David P. Handren (“Handren”). On June 19, 2008, Plaintiffs filed their Motion to Strike Designated Portions of Affidavit of David P. Handren, Cross-Motion for Summary Judgment, together with supporting memorandum, Affidavits of Peter Hallock, William J. McGovern, Edwin J. Deadrick, David A. Clark, P. E., Theodore P. Steibert, A. I. A., and Peter S. Farber. [Note 2] The Chandlers filed a Reply on July 2, 2008. A hearing was held on all motions on August 18, 2008, at which time all motions were taken under advisement. Subsequently, and with leave from this court, the Chandlers filed a Supplemental Brief on August 25, 2008, and Plaintiffs filed a Further Memorandum on September 8, 2008, both relative to the application of G. L. c. 240, § 14A to the case at bar.

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. On July 1, 2005, the Chandlers purchased property located at 24 Windmill Lane in Chatham, Massachusetts (“Locus”) containing a single-family, one and three-quarter story house with a partially finished basement. Locus contains 29,200 square feet and is located within a R-40 district (and also in a Coastal Conservancy District). [Note 3] The existing house is 19.2 feet high (above an average grade of nine feet), contains 2,161 square feet of living space (excluding the partially finished basement), has a thirty-eight foot front yard setback, and a twenty-foot and ten-foot side yard setbacks.

2. Both Locus and the existing house are pre-existing and nonconforming under the By-law, as under the By-law in an R-40 zone, the minimum lot acreage is 40,000 square feet, the minimum front yard setback is forty feet, and the minimum side-yard setback is twenty-five feet. In an R-40 zone, the maximum height for a structure in a Coastal Conservancy District is twenty feet.

3. In November 2007, the Chandlers filed an application for the Special Permit pursuant to Section V.B (Enlargement, Extension or Change to Nonconforming Lots, Buildings and Uses) and Section VIII.D.2.b (jurisdiction of the ZBA for the Special Permit) of the By-law with the ZBA, seeking to demolish the existing structure on Locus and replace it with a new structure (the “New Structure”) containing 2,690 square feet of living space, with substantially the same footprint. [Note 4] The New Structure is 8.2 feet taller than the height of Locus’ existing house, resulting in a height of 27.4 feet above average grade. At a public hearing on December 6, 2007, the ZBA voted 4-1 to grant the Special Permit (the “ZBA Decision”). [Note 5] The ZBA Decision was filed with the Town Clerk on December 13, 2007.

4. Plaintiff Peter Hallock (“Hallock”) owns property directly to the east of Locus located at 16 Windmill Lane, Chatham. Hallock’s property abuts Locus. The maximum height of Hallock’s house is 21.8 feet above average existing grade. The Hallock house and the New Structure both face the ocean, in a southeasterly direction.

5. Plaintiffs Edwin J. Deadrick and Mary Jane Hall Deadrick (the “Deadricks”) own property located at 121 Morris Island Road in Chatham. The Deadricks’ property does not abut Locus, but is an abutter to an abutter (the Saylors) of Locus located within 300 feet as shown on a Town Assessor’s Map. The Deadricks’ property is uphill from Locus and to the northwest of Locus and is oriented in a different direction from Locus (east of east by southeast).

6. Locus is primarily in a “velocity zone” as designated by the Federal Emergency Management Agency (“FEMA”), requiring pilings instead of a foundation. [Note 6]

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Plaintiffs argue that they have standing to challenge the Special Permit, that the Special Permit is not valid and that a variance should have been applied for to increase the minimum height of the New Structure. The Chandlers argue that Plaintiffs have no standing to challenge the issuance of the Special Permit and, regardless, that the Special Permit is valid. I shall examine each issue separately.

Plaintiffs’ Motion to Strike.

Before looking to the substance of the parties’ claims, I must first address Plaintiffs’ Motion to Strike Portions of the Handren Affidavit. In their motion to strike, Plaintiffs fail to provide this court with specific objections to the numbered paragraphs of Handren’s Affidavit. Rather, Plaintiffs task this court with matching one of their many objections to each objected-to paragraph. [Note 7] In response, the Chandlers first argue that all of the paragraphs objected to by Plaintiffs are immaterial to their motion for summary judgment and, further, that the Handren Affidavit does not include settlement negotiations or statements of opinion.

In general, this court agrees with Plaintiffs that offers of compromise should be precluded from the summary judgment record. Enga v. Sparks, 315 Mass. 120 , 124 (1943). That said, and with respect to certain statements by Handren attributed to Plaintiffs, not all communication between parties rises to the level of a settlement offer. See Hurwitz v. Bocian, 41 Mass. App. Ct. 365 , 372-73 (1996) (finding a statement between parties admissible as there was no evidence of an intended lawsuit). [Note 8] Additionally, statements made by Plaintiffs are excluded from the hearsay rule as an admission by a party opponent. Care and Protection of Sophie, 449 Mass. 100 , 105 (2007) (citing M.S. Brodin & M. Avery, Massachusetts Evidence § 8.6.1, at 501-502 (8th ed. 2007)). However, such hearsay exception does not extend to statements made by persons other than Plaintiffs. Finally, this court shall not strike any statements of the parties’ respective experts on grounds that such statements are opinions. Rather, this court shall give such weight to these opinions as it deems reasonable.

In light of the broad nature of Plaintiffs’ Motion to Strike, this court shall only specifically address those elements of Handren’s Affidavit that are relevant to this decision; this court shall not rule on the remainder of the Handren Affidavit. With respect to those portions of Handren’s Affidavit dealing with the position and height of the parties respective houses, the lighthouse, and Locus (¶¶ 21, 25, 29, 37, 38, 41), such statements are admissible as they are relevant statements by the Chandlers’ expert that are not inadmissible opinions or offers of settlement. As such, Plaintiffs’ Motion to Strike Portions of the Handren Affidavit is DENIED IN PART, consistent with the above.

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 9] 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 Association, 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. 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.

Hallock 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 Special Permit. The Chandlers argue that the Deadricks enjoy no standing presumption. However, the summary judgment record includes an Assessor’s Map from the Town that shows the Deadrick’s parcel within 300 feet of Locus and partially abutting the Saylor parcel, which directly abuts Locus, thereby providing the Deadricks with presumed standing. As such, I find that Plaintiffs have a presumption of standing pursuant to G. L. c. 40A, § 11.

As Plaintiffs are presumed to have standing, the burden now shifts to the Chandlers 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). [Note 10]

I. Plaintiffs’ Alleged Diminution of Views.

The Deadricks allege as their only harm that the New Structure “will block all of the views which [they] now have from the second floor windows of [their] house over the roof of the existing garage on the Chandler property.” Although visual impacts are not generally a protected property right, Plaintiffs argue that because the By-law includes views as one of the criteria for consideration of a special permit, such interests are a basis for aggrievement in the case at bar. See Martin v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146-147 (2001). The question remains the degree to which views are protected under the By-law given Section V.B’s reference to the “[i]mpact of scale, siting and mass on neighborhood visual character, including views, vistas and streetscapes.”

The Chandlers argue, and this court agrees, that this language does not protect private views from within a particular building or through a particular window, but rather addresses the impact on the apparent character of the neighborhood. The plain language of Section 5.B protects the neighborhood’s visual character, which includes views, vistas, and streetscapes. In other words, Section 5.B protects views of the neighborhood and not views from one’s house. [Note 11]

Similarly, Hallock’s Affidavit states that his view of the Chatham lighthouse will be blocked as a result of the New Structure. However, as discussed, supra, private views are not a protected interest under Section 5.B of the By-law. Furthermore, even if it was a protected right, the Hallock Affidavit gives no facts to support his allegation that his view of the Chatham lighthouse will be obstructed by the New Structure. Hallock’s conclusions fail to “provide specific factual support for each of the claims of particularized injury the plaintiff has made.” Butler, 63 Mass. App. Ct. at 441.

In light of the above, I find that Plaintiffs lack standing to challenge the Special Permit based on allegations of diminution of private views, as such claims are speculative and do not involve a protected interest under the By-law.

II. Hallock’s Alleged Diminution of Open Space, Privacy, and Neighborhood Character.

In his Affidavit, Hallock claims that the New Structure “will result in a significant increase in the height and bulk of the structure,” which will have the effect of “overpowering and dwarfing” his house. Hallock’s Affidavit also states that the New Structure is more contemporary in appearance than the existing house on Locus and is out of character with the other homes in the neighborhood. In support of his alleged harms, Hallock appends to his Affidavit a sketch that he prepared that purports to show the height and bulk of the New Structure as compared to the existing house on Locus.

In short, this court views Hallock’s assertions that the New Structure will “overpower” and “dwarf” his house as hyperbole, as such claims are not grounded to facts within the summary judgment record. [Note 12] In support of his position, Hallock attached a sketch, which he purportedly prepared using figures from a site plan previously created by the Chandlers, which Hallock claims shows the “large increase in the height and bulk” between the existing house on Locus and the New Structure. The sketch does not support Hallock’s assertion that the New Structure looms over his house. For one, this court considers the New Structure’s engineering and design as “beyond the scope of the common knowledge, experience and understanding of the trier of fact without expert assistance.” See Barvenik, 33 Mass. App. Ct. at 137 n.13 (deferring to the trial judge’s acknowledgment of “the value of expert testimony with respect to the issues of traffic and water distribution and expressly noted that the issues of water pressure, site drainage, storm drainage, and landscaping were ‘technical questions’ and ‘specialized matters.’”). The sketch appears to be the sort of schematic drawing that an expert would produce and there is no evidence that Hallock is so qualified. Additionally, the sketch does not include any scale that would assist this court in determining the structures “bulk” or volume. Even if this court relied on Hallock’s sketch, which it does not, the sketch simply shows the respective elevations of Locus’ existing house and the New Structure, and it does so without linking Hallock’s house to Locus.

The record is clear that the New Structure is 8.2 feet taller than the existing structure on Locus and that Hallock’s house is almost sixty feet from the New Structure; [Note 13] however, no facts in the record tether the alleged harms of the New Structure to Hallock. Hallock’s opinion is speculative as he fails to provide any facts that support his allegation of a loss of open space and privacy. [Note 14] Moreover, Hallock’s claims that the New Structure overpowers and dwarfs his house echo of the sort of nonspecific fears that are inconsistent with aggrievement. See Barvenik, 33 Mass. App. Ct. at 132-33 (“Subjective and unspecific fears about the possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close neighborhood feeling, or the loss of open or natural space are all considered insufficient bases for aggrievement under Massachusetts law.”). See also Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 545 (2008) (“The language of a bylaw cannot be sufficient in itself to confer standing: the creation of a protected interest . . . cannot be conflated with the additional, individualized requirements that establish standing.”). In sum, Hallock fails to provide this court with credible evidence of a particularized injury, as his claims that the New Structure will be “overpowering” fail to make the requisite connection between the New Structure and Hallock’s house.

With respect to the Hallock’s argument that he has standing pursuant to Section V.B’s reference to the “[i]mpact of scale, siting and mass on neighborhood visual character,” again, Hallock fails to provide quantitative evidence that the New Structure aggrieves him with any particularity. Hallock fails to provide any credible expert testimony that connects the alleged harms of the New Structure (with regard to its scale, siting, or mass on the neighborhood’s visual character) to Hallock. While the Affidavit of McGovern concludes that the New Structure will upset the neighborhood’s “conformity,” such affidavit was adduced solely for McGovern’s opinion as to the New Structure’s impact on the value of Plaintiffs’ homes and not for the New Structure’s affect on the neighborhood’s visual character. It is this court’s opinion that McGovern, as a real estate appraiser and broker, lacks the background to provide expert testimony on architectural and planning matters. Regardless, McGovern fails to tie neighborhood conformity to Hallock with any particularity. See infra, pp. 12-13.

In light of the above, I find that Hallock lacks standing to challenge the Special Permit based on allegations of diminution in open space, privacy, and neighborhood character as Hallock fails to provide credible evidence of particularized harm.

III. Diminution of Value.

“A claim of diminution of property values must be derivative of or related to cognizable interests protected by the applicable zoning scheme.” Standerwick, 447 Mass. at 31-32. Although neither the affidavits of Hallock nor the Deadricks (nor the Second Amended Complaint) mention diminution of property value as an alleged harm, Plaintiffs’ expert, William J. McGovern (a real estate appraiser), provides an affidavit stating that “the construction on the Chandler property, as proposed, will upset the conformity of the Little Beach neighborhood and particularly the Windmill Lane sub-neighborhood, therefore upsetting value.” However, the McGovern affidavit does not mention either the Hallock property or the Deadrick property and his comments are generalized concerns. Such assertions are insufficient to establish Plaintiffs’ aggrievement. See Bell, 429 Mass. at 554 (citing Barvenik, 33 Mass. App. Ct. at 132). Besides saying that the New Structure will “not be in harmony with the established character of the neighborhood,” and will, thus, “upset the value” of Plaintiffs’ properties “in a negative way,” the McGovern opinion never states the degree to which Plaintiffs’ properties will be affected. There is no reference to a particularized harm to either Hallock or the Deadricks and no indication of what type of diminution of value might be at issue. [Note 15] As such, McGovern fails to provide credible quantitative evidence that substantiates a claim of diminution in value.

As a result of the foregoing, I find that Plaintiffs lack standing to challenge the Special Permit based on allegations of diminution in value as the McGovern Affidavit fails to provide credible evidence of particularized harm.

Standing in Context of G. L. c. 240, § 14A.

As this court has found that Plaintiffs lack standing to challenge the Special Permit, the Special Permit is, therefore, upheld and valid. However, Plaintiffs argue that they have independent standing to pursue their arguments pursuant to G. L. c. 240, § 14A (Count II). [Note 16] The Chandlers argue that Plaintiffs’ lack of standing under G. L. c. 40A, § 17, preempts standing under G. L. c. 240, § 14A and disposes of this case.

A review of Count II is helpful in this analysis. Through Count II, Plaintiffs challenge Sections V.B (special permit for nonconforming lot) and IV.A.3 (special permit - conservancy district) [Note 17] of the By-law relative to the construction of the New Structure, stating that the challenged By-law sections allow a violation of the height requirement under the By-law. The ZBA Decision upheld the Special Permit to build the New Structure, and, as stated previously, because Plaintiffs lack standing under G. L. c. 40A, § 17, the Special Permit is valid. It follows that Plaintiffs cannot now use G. L. c. 240, § 14A as a mechanism to test the validity of the Special Permit. The challenge to the By-law, as a result, will not assist Plaintiffs with respect to the construction of the New Structure. Although Plaintiffs raised an issue as to whether a height variance was required for the construction of the New Structure, the ZBA acknowledged that such issue was not before them, and, as a result, that issue is not before this court. Thus, I find that Plaintiffs do not have independent standing to challenge the ZBA Decision pursuant to G. L. c. 240, § 14A.

As a result of the foregoing, I DENY Plaintiffs’ Cross-Motion for Summary Judgment and ALLOW the Chandlers’ Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: November 30, 2009