Plaintiff, the United States of America, commenced this case on July 23, 2008, as an appeal, pursuant to G.L. c. 40A, § 17, from a decision of the Defendant the Town of Wellfleet Zoning Board of Appeals upholding the grant of a building permit for the reconstruction of a single-family dwelling on a parcel of registered land, known as and numbered 1440 Chequessett Neck Road in Wellfleet. The subject property is shown as Lot 5 on Land Court Plan 18775-D, and is owned of record by Defendant Blasch Del Mar, LLC.
On August 11, 2009, Plaintiff filed a Motion for Summary Judgment. Defendant Blasch Del Mar, LLC opposed the motion on September 28, 2009, and field a Cross-Motion for Summary Judgment. The motions were argued on October 23, 2009, and are the matters presently before the court.
After reviewing the record before the court, I find that the following facts are not in dispute:
1. Defendant Blasch Del Mar, LLC (Defendant Blasch) is the owner of a parcel of real property, known as and numbered 1440 Chequessett Neck Road in Wellfleet (Property).
2. The Property was first defined in or about 1952.
3. The Property contains approximately 2.95 acres of land.
4. At some point a dwelling structure was constructed on the Property.
5. At the time the Property was created and the original structure was built, there were no zoning bylaws in effect in the Town of Wellfleet.
6. In or about 1985, pursuant to a building permit, the original structure on the Property was demolished and a single-family structure was constructed (Prior House).
7. The Prior House contained 1,940 square feet of living area.
8. The Property is located in the National Seashore Park zoning district of the Town of Wellfleet Zoning By-laws. In the National Seashore Park district a single-family dwelling is allowed as of right.
9. The National Seashore Park district requires a minimum lot area of 3 acres.
10. The Prior House and lot met all the dimensional and setback requirements of the Town of Wellfleet Zoning By-laws except for minimum lot area.
11. Prior to March 4, 2008, Defendant Blasch applied for a building permit to demolish the Prior House and construct a new single-family dwelling on the Property (New House).
12. The proposed New House will continue to meet all the dimensional requirements of the Zoning By-laws.
13. The New House will be located in the same area as the Prior House; a promontory strip of land away from the tree cover to the north and overlooking Herring Pond to the east and Cape Cod Bay to the west.
14. The New House will have a larger footprint than the Prior House.
15. The New House will contain 5,848 square feet of living area.
16. The New House will be more than twice the height of the Prior House.
17. On March 4, 2008, the Building Inspector of the Town of Wellfleet granted the building permit to Defendant Blasch. Plaintiff appealed from the grant to the Town of Wellfleet Zoning Board of Appeals. On July 7, 2008, the Board of Appeals upheld the grant. The Plaintiff appealed to this court.
18. On or about June 2, 2008, prior to the Board of Appealss decision, the Defendant Blasch caused the Prior House to be demolished.
19. Plaintiff, the United States of America, is the owner of a vast area of real property, known as the Cape Cod National Seashore (CCNS), consisting of approximately 44,000 acres of land located along the shoreline of outer Cape Cod.
20. CCNS abuts the Property to the north, south, and east.
21. The CCNS property to the south of the Property contains a barrier beach, commonly known as the Gut.
22. The CCNS property in the vicinity contains beaches.
***
Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cmty. Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976); Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the court reviews the evidence in the light most favorable to the nonmoving party. Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).
In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment.
Standing
General Laws chapter 40A, § 17 provides in pertinent part:
[a]ny 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 boards 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 establishby direct facts and not by speculative personal opinionthat 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 boards 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 Comm., Inc. v. Bd. of Appeals of Amherst, 1 Mass. App. Ct. 826 , 826-27 (1973); accord Harvard Square Def. 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 to the Property and, thus, is presumed to have standing. However, Defendant Blasch has raised a challenge to the Plaintiffs standing. In support of this challenge, Defendant argues that Plaintiff either cannot support its alleged injuries with specific facts or cannot demonstrate that a supported injury is within the protection of the Town of Wellfleet Zoning By-laws.
Specifically, Defendant Blasch points out that Plaintiff alleges adverse impact to the directive of the Cape Cod National Seashore as defined by its enabling act, 16 U.S.C. § 459b-6 (2009), and as defined by the regulations establishing standards of approval of municipal zoning ordinances and bylaws in the CCNS, 36 C.F.R. § 27.3 (2008). Defendant argues that this injury is not an interest protected by the Zoning By-laws. The purpose of the National Seashore Park zoning district is [t]o provide for those residential and commercial uses that do not conflict with the regulations governing the activities of the National Seashore Park and are not incompatible with the character of the park, including the preservation of natural and scenic areas, as well as providing of certain recreational and leisure time activities for users of the park. Town of Wellfleet Zoning By-laws, § 5.3 (2008). In other words, the purpose of the district is to provide for certain uses permitted by the CCNS, pursuant to 36 C.F.R. § 27.3. This language, however, does not mean that the specific purposes of the CCNS are recognized and protected by the Zoning By-laws.
Moreover, § 5.3 of the Zoning By-laws is implicitly consistent with the purposes of the CCNS. The Cape Cod National Seashore is a designated National Park, comprising approximately 44,000 acres of land along the shoreline of outer Cape Cod, administered by the National Park Service, which service is a federal agency within the Department of the Interior of the Federal Government. CCNS was created in 1961 by the U.S. Congress [i]n order that the seashore shall be permanently preserved in its present state
, including the flora and fauna, physiographic conditions, and historic sites and structures. 16 U.S.C. §§ 459b-6(b)(1) (2009). While the primary purpose of the CCNS is to prevent further development of the seashore, Congress recognized the interests of the residents located within this newly designated area. Rather than make comprehensive takings of all the land within the CCNS, Congress permitted developed property to remain, as long as the municipality in which it was located enacted a zoning bylaw and amendments that met with the approval of the Secretary of the Interior. In 1962, the Secretary issued regulations which established standards for the approval of zoning ordinances and bylaws. These regulations defined a Seashore District, which contains the Property. 36 C.F.R. § 27.3(a). The purposes of this district are to protect the scenic, scientific and cultural values of the area, preserve the undeveloped areas in a natural condition, and maintain the distinctive Cape Cod character of existing residential structures. 36 C.F.R. § 27.3(b). Therefore, the Plaintiff, by and through the Secretary of the Interior, had opportunity to consider § 5.3 of the Zoning By-Laws and, by not disapproving of the amendment, found that the provision was consistent with the purposes of the CCNS.
Defendant Blasch points out also that Plaintiff appears to allege injury to interests protected by the Wellfleet Conservation Commission. Defendant argues that these interests are clearly separate and distinct from the Zoning By-laws and not specifically protected therein. Moreover, Defendant argues that the Plaintiff is unable to produce any facts to support this allegation.
Plaintiff alleges also that the New House will cause surface instability and disruption of eolian transport of sand, which could cause harm to the Plaintiffs property to the north, south, and east as well as the Plaintiffs beaches in the vicinity, including the so-called Gut. Defendant counters that this allegation is purely speculative. In support of this argument, Defendant Blasch produces an Affidavit of Stanley M. Humphries, a coastal geologist. Mr. Humphries studied the Property and the surrounding area, including first-hand observation and soil samples. Upon considering the topography, soil consistency, vegetation, and wind patterns of the area, Mr. Humphries concludes that in his opinion, the New House will not cause a measurable geological impact on the Plaintiffs property.
Lastly, Defendant Blasch points out that Plaintiff alleges that the New House will cause harm to the scenery of the area. While a purpose of the National Seashore Park zoning district is the preservation of natural and scenic areas, Defendant argues that Plaintiff cannot demonstrate particular injury. I agree. Accordingly, I find that Defendant Blasch has effectively rebutted the Plaintiffs presumption of standing.
Plaintiff has failed to produce any facts which tend to show any injury which would result if the New House were completed. Plaintiff stresses that it is a federal entity, mandated and funded to protect the public interest in natural and scenic values of the area. Unfortunately, the statutory purpose of a government entity is not sufficient to confer standing in the zoning context. See Harvard Square Def. Fund, Inc., 27 Mass. App. Ct. at 495-96; Chongris, 17 Mass. App. Ct. at 999; Amherst Growth Study Comm., Inc., 1 Mass. App. Ct. at 826-27. Plaintiff has not produced any specific facts which tend to show that the New House is a threat to cause damage to the CCNS property in the vicinity resulting from surface instability or disruption of eolian transport of sand.
In addition, Plaintiff characterizes the New House as manorial in design, including a turret, which design contrasts sharply with the natural terrain that surrounds the Property. Plaintiff contends that the height and volume of the New House render it highly visible from the Plaintiffs property; as compared to the Prior House, the New House will have a larger footprint, over three times the living area, and stand over twice as tall. However, Plaintiff does not demonstrate how the CCNS property in the vicinity is harmed by the alleged impact of the New House on the scenery of the area, or how such impact is particular to the Plaintiff. The New House will be visible from CCNS property farther than that portion directly abutting the Property as well as other property in the Town of Wellfleet.
Lastly, Plaintiff appears to argue that a government agency has standing in the Commonwealth to bring a zoning action on behalf of the public interest. I find this to be a wholly unsupported theory. Therefore, Plaintiff has not met its burden of demonstrating a particularized injury resulting from the zoning relief granted. Accordingly, I rule that the Plaintiff lacks standing to bring this action. Nonetheless, even if the Plaintiff had standing to bring this action, its claim fails on the merits.
Decision of the Board of Appeals
General Laws chapter 40A, § 17 requires that [t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require. 40A, § 17. The Supreme Judicial Court has interpreted § 17 to require that a court hearing an appeal pursuant to 40A, § 17 apply a combination of de novo review and deference to the judgment of the municipal authority. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) (and case cited). The Trial Court must review the evidence and make findings of fact without deference to the boards findings. Id.; Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see G.L. c. 40A, § 17. In this review, the court is not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Cmmn, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Bd. of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).
However, this review is circumscribed by the requirement to defer to the judgment of the municipal board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with the validity but not the wisdom of the boards action. Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing a § 17 appeal is not authorized to make administrative decisions. Pendergast, 331 Mass. at 557-58; Geryk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the boards judgment is controlling. ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). However, in limited circumstances, the Trial Court may substitute its judgment for that of the boards, where justice and equity require. G.L. c. 40A, § 17; Pendergast, 331 Mass. at 558.
It follows, therefore, that the court may overturn the board's decision only if the decision is based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); accord MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. Moreover, where the courts findings of fact support any rational basis for the municipal boards decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.
In the present case, Plaintiff argues that the Board of Appeals is required to render a finding concerning whether the New House will be substantially more detrimental than the existing, nonconforming structure to the neighborhood and, therefore, the Decision should be annulled. General Laws chapter 40A, § 6 provides, in relevant part:
[A] zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun
before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use
after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure.
Section 6 prescribes the minimum of tolerance that must be accorded to nonconforming uses, existing buildings and structure, and the existing use of any building or structure, and reserves to the municipality maximum control of such nonconformities. Inspector of Bldgs. of Burlington v. Murphy, 320 Mass. 207 , 209 (1946) (citations omitted) (and cases cited). In other words, § 6 establishes a floor for protection of nonconformities, and municipalities retain a continuing right to regulate or forbid changes in nonconforming uses [or structures]. Blasco v. Bd. of Appeals of Winchendon, 31 Mass. App. Ct. 32 , 39 (1991); see e.g. Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass. 406 , 412-13 (1962); Inspector of Bldgs. of Burlington, 320 Mass. at 209-210.
Under § 6, a preexisting, nonconforming single- or two-family residential structure may be reconstructed if the reconstruction does not increase the existing nonconformities. However, a zoning ordinance or bylaw may specifically authorize such reconstruction.
Section 6.1.5.2 of the Town of Wellfleet Zoning By-laws provides, in relevant part:
Conforming single and two-family residential structures located on non-conforming lots may be altered if:
a. the structure after the alteration will continue to conform
.
Section 2.1 of the Zoning By-laws defines structure as: Anything constructed or erected, the use of which requires location on the ground or attachment to something located on the ground
. This section also defines lot, in relevant part, as: Parcel of land occupied or intended to be occupied by one Principal Building or Principal Use and its accessory buildings
.
Section 6.1.5.2 of the Wellfleet Zoning By-laws clearly provides more liberal protections of nonconforming structures than required by G.L. c. 40A, § 6, which the town is authorized to do. It is undisputed that the Property and the New House fall under this provision of the Zoning By-laws.
Plaintiff argues also that § 6.1.5.2 of the Zoning By-laws is inconsistent with G.L. c. 40A, § 6, and therefore, is invalid. I disagree. While it is true that a provision of a zoning ordinance or bylaw may not conflict with a statute, as discussed previously, § 6 establishes only the minimum tolerance of nonconforming structures and uses and reserves to the municipality the right to provide more liberal protection. A zoning ordinance or bylaw may provide specific authority for the reconstruction of a single- or two-family residential structure. Section 6.1.5.2 of the Zoning By-laws does just that.
Plaintiff argues further that § 6.1.5.2 invalidly distinguishes between a nonconforming structure and a nonconforming lot. Plaintiff continues that the reconstruction of the previous house constituted a change to the nonconformity, because the structure and lot are considered together. Plaintiff concludes, therefore, that the Board of Appeals was required to render a finding concerning whether the New House will be substantially more detrimental than the existing, nonconforming structure to the neighborhood. Again, I disagree. Plaintiff relies on Bransford v. Zoning Bd. of Appeals of Edgartown for the proposition that, as applied in G.L. c. 40A, § 6, the phrase nonconforming structure means both nonconforming structure and nonconforming lot. 444 Mass. 852 (2005). In the context of that section, the two concepts are intertwined and they should not be distinguished. Id. at 861. However, this interpretation does not bind municipal bylaws and there is nothing prohibiting the town of Wellfleet from providing greater protections to nonconforming lots in this manner.
Lastly, Plaintiff makes the confusing argument that § 6.1.5.2 of the Zoning By-laws does not apply to authorize the New House, because Defendant Blasch voluntarily razed the Prior House and, therefore, is no longer protected by § 6 to construct the New House. On March 4, 2008, the Building Inspector of the Town of Wellfleet granted a building permit to Defendant Blasch for the demolition of the Prior House and the construction of the New House. Defendant Blasch demolished the Prior House on June 2, 2008. The demolition of the Prior House occurred only after and pursuant to the grant of a valid building permit.
Conclusion
For the foregoing reasons, this court concludes that Plaintiff lacks standing to bring this action. Defendant effectively rebutted the Plaintiffs presumption of standing by providing facts that Plaintiff cannot support its alleged injuries with specific facts or demonstrate that a supported injury is within the protection of the Town of Wellfleet Zoning By-laws. In response, Plaintiff did not convince the court that the directive of the Cape Cod National Seashore or the interests of the Wellfleet Conservation Commissioner are interests protected by the Zoning By-laws. Moreover, Plaintiff failed to produce specific facts which tend to show that the New House is a threat to cause damage to the Cape Cod National Seashore property in the vicinity resulting from surface instability or disruption of eolian transport of sand, or demonstrate how the property in the vicinity is harmed by the alleged impact of the New House on the scenery of the area or how such impact is particular to the Plaintiff. In accordance with the foregoing, the Plaintiffs Motion for Summary Judgment is hereby DENIED, and the Defendant Blaschs Cross-Motion for Summary Judgment is ALLOWED.
Judgment to enter accordingly.
Charles W. Trombly, Jr.
Justice
Dated: December 28, 2009
UNITED STATES OF AMERICA v. BRUCE DRUCKER, ROBERT HANKEY, THEODORE E. HELIGER, VERNON JACOB, DONALD PALLADINO, ROGER L. PUTNAM, WILLIAM NICHOLSON, THOMAS REINHART, HELEN M. WILSON, as they are members of the TOWN OF WELLFLEET ZONING BOARD OF APPEALS and BLASCH DEL MAR, LLC