JOSEPH C. GIARDELLA and LAURIE A. GIARDELLA, ANTHONY J. CALOGGERO and BARBARA CALOGGERO vs. WILLIAM CRAWFORD, PAUL MORSE, ELI MAVROS, DENNIS BALL and THEODORE CRONIS, as they are members of THE ZONING BOARD OF APPEALS OF THE TOWN OF NAHANT, and OLD TOWN M.P.B., LLC, GAIL DOMBROWSKI and VINCENT LOPEZ

Plaintiffs filed their unverified Complaint on November 6, 2006, challenging, pursuant to G. L. c. 40A, § 17, Defendant Zoning Board of Appeals of the Town of Nahant's (the "ZBA") approval of Defendants Old Town M.P.B., LLC, Gail Dombrowski, and Vincent Lopez's (the "Applicants") (together with the ZBA, "Defendants") application for a special permit to convert use of property located at 2 Castle Road, Nahant ("Locus") from an office, lobby, and storeroom to a convenience store/food market (the "Market"). Defendants filed a Motion for Remand on December 26, 2006, which was heard and allowed on January 5, 2007, and a Remand Order was issued on January 9, 2007. Plaintiffs filed an unverified Amended Complaint on April 25, 2007, which was allowed at a status conference on May 21, 2007. [Note 1] Plaintiffs' Amended Complaint challenged the ZBA's decision to allow continued business use of Locus and the ZBA's finding that the proposed new use of Locus would not be substantially more detrimental to the neighborhood than the existing non-conforming use. The parties filed an Amended Stipulation of Dismissal with prejudice as to Plaintiffs Anthony J. Caloggero and Barbara Caloggero on January 18, 2008. [Note 2]

The parties held a pre-trial conference on February 6, 2008, at which a trial date of June 23-24, 2008, was set. At a status conference on March 25, 2008, the parties agreed to a summary judgment motion on Plaintiffs' standing. On May 9, 2008, Defendants filed their Joint Motion for Summary Judgment, together with supporting memorandum, statement of material facts, Appendix, and Affidavits of John Coulon (Nahant Health Agent), Sheila K. Hambleton (Nahant Assistant Assessor), William F. Waters (Nahant Chief of Police) ("Waters"), and Gail Dombrowski (Defendant). Plaintiffs filed their Opposition on June 9, 2008, together with supporting memorandum, Response to Material Facts, Appendix, and Affidavits of Laurie Giardella (Plaintiff) ("Giardella"), William R. DiMento (Plaintiffs' attorney) ("DiMento"), and James Rainsford (Plaintiffs' attorney). On July 17, 2008, Defendants filed their Joint reply, together with Second Affidavit of Waters. [Note 3] A hearing was held on all motions on July 30, 2008, and the matter was 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. 5(c).

The following facts are not in dispute:

1. Plaintiffs own and reside at 29 Castle Road, Nahant, Massachusetts ("Plaintiffs Property"), which is across the street from Locus. [Note 4]

2. The Applicants have an interest in Locus and filed the application for the special permit. [Note 5] Locus is located in a R-2 residential zone under the Zoning By-laws of the Town of Nahant. The prior use of Locus, commencing in approximately 1928, has been commercial retail use. The most recent use of Locus, prior to the change of use issue in this case, was an office, lobby, and storeroom for an electrician.

3. In August of 2006, the Applicants applied to the ZBA for a special permit to convert the prior use to a convenience store or food market (the "Project"). On October 4, 2006, the ZBA voted to grant the special permit ("Decision 1"). On October 30, 2006, the ZBA voted to reconsider and rescind Decision 1 and to amend its findings to include that the office, lobby, and storeroom use at Locus was a prior, nonconforming use ("Decision 2"). The ZBA also found that the proposed new use would not be substantially more detrimental to the neighborhood than the existing non-conforming use. Finally, Decision 2 overruled the decision of the Nahant Building Inspector (who refused to issue Locus a Building Permit pursuant to the zoning by-law's Table of Use Regulations) and allowed continued business use of Locus, as petitioned.

4. Decision 2 was remanded to the ZBA by Order of this court dated January 9, 2007. The ZBA issued a third decision ("Decision 3") on April 5, 2007, which first found that the proposed new use would not be substantially more detrimental to the neighborhood than the existing non-conforming use and, second, overruled the decision of the Nahant Building Inspector, and allowed continued business use of Locus. There were two conditions put on the proposed new use: (1) there could be no more than four residential trash receptacles; and (2) the store could only operate from 9:00 A.M. to 9:00 P.M.

5. The Project opened on Locus on or about January 15, 2008.

6. Locus is located adjacent to a MBTA bus stop and a right of way which accesses a public beach known as Doggy Beach.

7. Customers of the Market have used the driveway on Plaintiffs Property to turn around their vehicles, allowing them to exit Castle Road and return to Nahant Road. Plaintiffs' young son uses the front yard of Plaintiffs Property as a location to play.

8. Giardella's access to the driveway on Plaintiffs Property has been hindered by the illegal parking of customers of the Market.

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The sole issue for summary judgment is Plaintiffs' standing to bring this action. Plaintiffs are parties in interest relative to Locus, and as such have a presumption of standing. [Note 6] In addition, they allege, through affidavit testimony, that they are aggrieved by five harms (diminution of property value, parking, traffic, noise, and litter) resulting from the special permit issued to Applicants. Defendants allege that Plaintiffs are not aggrieved parties and, thus, have no standing.

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 'person aggrieved' is one who 'suffers some infringement of his legal rights.'" Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008) (citing Marashlian, 421 Mass. at 721). A plaintiff is presumed aggrieved if it is a "party in interest" pursuant to G.L. c. 40A § 11. [Note 7] Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986).

However, this presumption is rebuttable. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 32-33 (2006). In order for a defendant to rebut the presumption of standing, a defendant is "required to offer evidence 'warranting a finding contrary to the presumed fact.'" Standerwick, 447 Mass. at 25 (quoting Watros v. Greater Lynn Mental Health and Retardation Ass'n, Inc., 421 Mass. 106 , 111 (1995)). 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, the issue is then decided on "all the evidence with no benefit to the plaintiff from the presumption." Marashlian, 421 Mass. at 721 (internal citations omitted). This review, when based on "all evidence," "does not require that the fact finder ultimately find a plaintiff's allegations meritorious. To do so would deny standing, after the fact, to any unsuccessful plaintiff." Id. Rather, the question of standing is a "gatekeeping question [that] requires consideration solely of the quantity and quality of evidence the plaintiffs have presented." Michaels v. Zoning Bd. Of Appeals of Wakefield, 71 Mass. App. Ct. 449 , 453 (2008).

Without presumed standing, "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. Bd. of Alderman 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" includes

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.

As parties in interest relative to Locus, Plaintiffs are presumed to have standing, and the burden shifts to Defendants to challenge such presumption by showing that Plaintiffs have no reasonable expectation of proving a legally cognizable injury. Standerwick, 447 Mass. 20 , 35 (2006). To satisfy their burden, Defendants begin by pointing out that Plaintiffs have supplied supporting affidavits only from Plaintiffs themselves and their attorneys. [Note 8] Plaintiffs rely heavily upon the Affidavit of Giardella who provides testimony regarding traffic and parking, based on the proximity of Plaintiffs Property to Locus and her personal observations over the last eight years. She gives evidence that the frequency of deliveries to Locus, the hours of operation at Locus, traffic and illegal parking of cars around Locus, and use of her driveway for turn-around in conjunction with the use of Locus have increased since the Project opened in January of 2008. Giardella personalizes these harms by indicating her concern for her young son's safety due to patrons of the Market utilizing her driveway to turn around and claiming that illegal parking impedes her access to Plaintiffs Property. Giardella supports her testimony with photographs.

Plaintiffs fail to provide affidavit testimony as to alleged harms of litter, noise, and diminution of property value, and as a result, Defendants can rely on this lack of evidence to indicate that Plaintiffs would not prevail on this issue at trial, and it is not necessary to address these harms. See Standerwick, 447 Mass. at 35. Even so, given Giardella's testimony regarding parking and traffic, Defendants must provide evidence that demonstrates how such claims have no reasonable expectation of proving a cognizable injury.

Defendants supply expert testimony from various town officials (a health agent, the assistant assessor, and the police chief) which address Plaintiffs' alleged harms. The Health Agent points out that the proximity of Locus to Doggy Beach indicates that traffic, noise, and litter has always existed in the area. However, this is irrelevant to the issue of whether these harms have increased as a result of the Project. The Assistant Assessor states that the Project would not cause a devaluation of Plaintiffs Property (Plaintiffs gave no evidence that it did). The Police Chief, Waters, also provided affidavit testimony that there were no existing traffic or parking problems at Locus, but his knowledge was based on observations that pre-dated the Project, and his projections about potential minimal increases were speculative.

In his second affidavit, Waters comments on Giardella's affidavit based on his experience in traffic and parking issues and his familiarity with Locus' neighborhood. [Note 9] The Police Chief claims that Giardella's supporting photographs fail to demonstrate harm on the part of Plaintiffs. To a certain degree, this court agrees. While the photographs attached to Giardella's affidavit show illegal parking, they fail to link such conduct to her alleged injury. However, Waters' testimony fails to address Giardella's allegations that patrons of the Market have in the past used her driveway to turn around and parked in a manner that interferes with her use and enjoyment of her driveway.

Based on the foregoing, Plaintiffs have shown that increases in parking and traffic as a result of the Project have impacted Plaintiffs Property. Such increases do not need to be extensive in order to confer standing. See Marashlian, 421 Mass. at 723 (noting minimal increases in traffic are neither speculative nor too remote to confer "aggrieved" status). As a result, I DENY Defendants' Motion for Summary Judgment and ALLOW summary judgment for Plaintiffs on the issue of standing. The parties shall mark up a status conference within thirty days of the date of this decision for purposes of establishing an evidentiary hearing on the merits of this case. In the event that such status conference is not marked up within the proper time frame, this case shall be dismissed, without prejudice. Judgment shall issue upon resolution of these issues.

Alexander H. Sands, III

Justice

Dated: December 30, 2008