FREDERICK M. CONDON v. ROGER BECKER, WILLIAM BISHOP, ALLISON CANNON, FRED MASCOLO, and ALAN WILSON, as they are members of the TOWN OF EDGARTOWN PLANNING BOARD; and C.B. 20, LLC

This case comes before the court on motion of the Defendant C.B. 20, LLC (Defendant C.B. 20) to dismiss the Complaint for lack of jurisdiction over the subject matter, pursuant to Mass. R. Civ. P. 12(b)(1). The action underlying this motion is an appeal, pursuant to G.L. c. 40A, § 17, from a decision of the Defendant the Town of Edgartown Planning Board to grant a special permit to allow a pool and pool house on a parcel of real property, known as and numbered 20 Cow Bay Road in Edgartown (Property), owned of record by Defendant C.B. 20. Through this motion, Defendant C.B. 20 seeks to dismiss the Complaint for lack of standing.

The facts of this case are as follows. The Property is located in the R-60 Residential Zoning District of the Town of Edgartown, Massachusetts Zoning By-law. Portions of the Property are located also in the Coastal Overlay District of the Zoning By-law. The purpose of the Costal Overlay District appears to be to protect the land and waters of that district from “erosion, flood damage, pollution, and destruction of irreparable natural resources” as well as to “maintain and enhance the health, safety, and general welfare of Island residents and visitors, and for present and future generations.” Decision of the Martha’s Vineyard Commission Designating the Costal District as a District of Critical Planning Concern § 3.00 (December 22, 1975).

In or about May or June 2006, Defendant C.B. 20 filed an application for a special permit with the Planning Board to allow a pool and pool house on the Property (Proposed Development). Defendant C.B. 20 proposes to construct a swimming pool, approximately 640 square feet in area; a pool house, approximately 234 square feet in area and 14 feet high; and a mechanical system for the pool. The pool house will be setback 50 feet from the eastern border of the Property, this being the closest the proposed development will be to the Plaintiff’s property.

Where a special permit to use property for a pool is applied for, the Planning Board provides a Pool Checklist to be included with the application. The checklist notes that: “A complete application for a special permit for a swimming pool should include information about each of the issues on this checklist.” On July 18, 2006, the Planning Board voted to grant the special permit with conditions and filed a decision of the Edgartown Town Clerk on or about July 27, 2006.

The decision imposed the following requirements, among others: (1) it limited outdoor lighting to one light in the pool and six lights for the patio, in fixtures fully shielded to shine down only; (2) it required fencing around the pool, four-feet high and screened with plants; and (3) it required a thirty foot screen of evergreens planted between the pool house and the eastern border. The decision requires also that Defendant C.B. 20 submit the final landscape plan to the Conservation Commission for approval.

Plaintiff is the owner of real property abutting the Property to the east and south. Previously, in or about September 2005, Defendant C.B. 20 filed an application for a Disposal System Construction Permit with the Town of Edgartown Board of Health. The Board of Health voted to grant the permit. Plaintiff appealed that decision to the Superior Court for Dukes County. The Superior Court dismissed the complaint for lack of standing. Plaintiff has appealed that decision to the Appeals Court.

Rule 12(b)(1) of the Rules of Civil Procedure provides for the dismissal of a claim for lack of jurisdiction over the subject matter. Generally, a court should not dismiss a claim, “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957), quoted in Nader v. Citron, 372 Mass. 96 , 98 (1977); accord Sullivan v. Chief Justice for Admin. and Mgmt. of the Trial Court, 448 Mass. 15 , 21 (2006) (citing Spinner v. Nutt, 417 Mass. 549 , 550 (1994)); Flattery v. Gregory, 397 Mass. 143 , 145-46 (1986)). In considering a motion to dismiss the court take the allegations made in the complaint and the inferences that may be drawn therefrom as true. Nader, 372 Mass. at 98 (and cases cited); Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)); Morais v. City of Lowell, 50 Mass. App. Ct. 540 , 541 (2000).

General Laws chapter 40A, § 17 provides in pertinent part:

Any person aggrieved by a decision of the board of appeals or any special permit granting authority … may appeal to the land court department … by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk.

In other words, in a zoning action, a person aggrieved has standing to bring such an action. The Supreme Judicial court has defined the phrase “person aggrieved” as a person whose legal rights have been infringed by the board’s action, which legal rights are of a type “intended to be given to the plaintiff by the statute permitting an appeal.” Circle Lounge & Grille v. Bd. of Appeal of Boston, 324 Mass. 427 , 430-31 (1949); accord Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37 , 46 (1977); Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 127 (1999); see Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 137-39 (1992).

In order to demonstrate such injury, plaintiff must assert “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989) (and cases cited); accord Standerwick v. Zoning Bd. of Appeals of Andover, 64 Mass. App. Ct. 337 , 340 (2005) (and cases cited). “[P]laintiff 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, 33 Mass. App. Ct. at 132. The facts alleged must be sufficient for a reasonable person “to conclude that the claimed injury likely will flow from the board’s action.” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005); accord Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 724 (1996); Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994). Conjecture, personal opinion, and hypothesis, are not sufficient to substantiate standing. Butler, 63 Mass. App. Ct. at 441. Moreover, “a general civic interest in the enforcement of zoning laws … is not enough to confer standing.” Amherst Growth Study Committee, Inc. v. Bd. of Appeals of Amherst, 1 Mass. App. Ct. 826 , 826-27 (1973); accord Harvard Square Defense Fund, Inc., 27 Mass. App. Ct. at 495-96; Chongris v. Bd. of Appeals of Andover, 17 Mass. App. Ct. 999 , 999 (1984).

In addition, the legal right must be of a type that the bylaw or ordinance was intended to protect. Circle Lounge & Grille, 324 Mass. at 429-30; Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372 , 376-77 (1988); Redstone v. Bd. of Appeals of Chelmsford, 11 Mass. App. Ct. 383 , 385 (1981); see also Martin v. Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146-47 (2001) (Where an ordinance of bylaw defines a specific protected interest, standing may be imparted “to a person whose impaired interest falls within that definition.”) (and cases cited).

These two elements should not be conflated, however; the language of the ordinance or bylaw, alone, is not sufficient; the plaintiff must still produce facts sufficient to show aggrievement under the relevant provision. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 545 (2008) (quoting Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35 (2006)). Nonetheless, as a general principle, “[t]he words ‘person aggrieved’ … are not to be narrowly construed.” Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957).

A presumption of standing lies in favor of “parties in interest,” within the meaning of G.L c. 40A, § 11. Id.; Tsagronis v. Bd. of Appeals of Waltham, 33 Mass. App. Ct. 55 , 58 (1992); Bedford, 25 Mass. App. Ct. at 377-78. General Laws chapter 40A, § 11 defines “parties in interest” as “the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list ….” This presumption is rebuttable, however. Marotta, 336 Mass. at 204. In order to rebut the presumption, defendant must “challenge[] a plaintiffs’ status as an aggrieved party and offer[] evidence to support his or her challenge.” Watros v. Greater Lynn Mental Health & Retardation Assoc., Inc., 421 Mass. 106 , 111 (1995); accord id.; Redstone, 11 Mass. App. Ct. at 385. The test is whether defendant has put forth sufficient evidence to show that plaintiff “‘has no reasonable expectation of proving’ a legally cognizable injury.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35 (2006) (quoting Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 716 (1991)); see Marashlian, 421 Mass. at 724; Monks, 37 Mass. App. Ct. at 688.

If rebutted, this presumption recedes. Marotta, 336 Mass. at 204; Redstone, 11 Mass. App. Ct. at 385; Watros, 421 Mass. at 111. Upon rebuttal, standing is determined “on all the evidence with no benefit to the plaintiffs from the presumption ….” Marotta, 336 Mass. at 204; accord Sherrill House, Inc. v. Bd. of Appeal of Boston, 19 Mass. App. Ct. 274 , 276 (1985).

In the present case, it is undisputed that Plaintiff is an abutter of the Property and, thus, is presumed to have standing. However, Defendant C.B. 20 has raised a challenge to the Plaintiff’s standing. In support of this challenge, Defendants argue that the Plaintiff can demonstrate no injury within the protection of the Zoning By-law. Specifically, Defendant C.B. 20 points out that Plaintiff makes two arguments: (1) if the Appeals Court reverses the Superior Court and annuls the decision of the Board of Health to grant the Disposal System Construction Permit, the Proposed Development will have to be redesigned, and therefore the board acted inappropriately without considering the circumstances and (2) the Planning Board did not follow proper procedures in making its decision. Defendant C.B. 20 counters that these grievances are not of a type that the Zoning By-law was intended to protect.

Defendants state also that Plaintiff appears to suggest that he will be impacted by noise and light emanating from the Proposed Development if it is allowed to proceed and again argues that these injuries are not protected by the Zoning By-law. Defendant acknowledges that while the Zoning By-law may specifically protect the integrity of the Costal Overlay District, Plaintiff is not able to demonstrate what specific detrimental impact the Proposed Development would have on the district. I agree and find that Defendant C.B. 20 has effectively rebutted the Plaintiff’s presumption of standing.

Plaintiff has failed to produce any facts which tend to show any injury which would result if the Proposed Development were allowed to proceed. Plaintiff states only that “[he] is entitled to ensure that … [Defendant C.B. 20] complies with all applicable requirements for the issuance of a special permit” and that these requirements are “specifically intended to protect the interest of abutters such as [Plaintiff].” (Pl.’s Opp’n to Def.’s Mot. to Dismiss 10.) This injury falls squarely within the category of a general civic interest in the enforcement of zoning laws and is, therefore, patently insufficient to confer standing. See Amherst Growth Study Committee, Inc., 1 Mass. App. Ct. at 826-27.

Plaintiff contends also that the pool and pool house have not been sited in the location of least impact to Plaintiff as a result of the allegedly procedurally-invalid decision and, therefore, will have a greater impact from light and noise on the Plaintiff’s Property. However, this argument is not supported by any direct facts and appears to be simply the personal opinion of, and speculation by, Plaintiff, which is, again, insufficient to confer standing. Therefore, I find that the Plaintiff lacks standing to bring this action.

At oral arguments, Plaintiff suggested that he does not have the burden of demonstrating particularized injury because the Planning Board has not made sufficient findings of fact from which he may demonstrate that injury. I do not agree. The location and size of the proposed development is settled and the lighting and screening elements have been described by the decision with sufficient detail for an abutter to determine the approximate impact of the pool and pool house. This burden is not extinguished, simply because Plaintiff believes the decision to be vague, conclusion with which the court does not agree.

Accordingly, it is hereby:

ORDERED that the Defendant’s Motion to Dismiss is ALLOWED.

So Ordered.

Judgment to enter accordingly.

By the court (Trombly, J.).

Attest:

Deborah J. Patterson

Recorder

Dated: December 4, 2009