LORENE SCANLON, ZACHARI DELIGIANDIS, SONJA HERNANDEZ, WILLIAM PENTA, RICHARD T. LAPERCHIA, DARROW A. LEBOVICI, JANE CURTIS ARLANDER, RICHARD A. LUECKE, JACQUELINE M. WASHBURN, NICHOLAS M. NOWAK, MORRIS L. SCHOPF, STEPHEN D. WHITTIER, MARTIN H. IMM, HUMPHREY GARDNER, JOHN L. HAYES, WILLIAM RUSSELL BURNS, JR., WILLIAM L. WRIGHTSON, and THE FEDERAL STREET NEIGHBORHOOD ASSOCIATION, INC. [Note 1] v. ROBIN STEIN, et al, as they constitute the Members of the City of Salem Board of Appeals, and RIVERVIEW PLACE LLC

In this action brought pursuant to G. L. c. 40A, § 17, Plaintiffs appeal a decision of the Salem Board of Zoning Appeals (BZA) granting Defendant Riverview Place, LLC (Riverview) three variances in connection with the proposed redevelopment of 4.14 acres of land located at 72 Flint Street, 67-69 Mason Street, and 71 Mason Street (Locus) into a mixed-use residential and commercial development in Salem (Development). [Note 2] In a complaint filed on November 21, 2007, Plaintiffs allege they are “persons aggrieved” by the BZA’s decision as development of Locus will cause increased traffic volume and congestion injuring Plaintiffs’ real property interests. The parties’ Stipulations as to Standing and Aggrievement for Purposes of Trial filed February 23, 2010, limited Plaintiffs’ alleged harm to traffic and specifically waived any claim of harm based on parking issues. Plaintiffs ask this court to annul the decision, alleging it exceeded the BZA’s authority, as it was arbitrary, capricious, and based on legally untenable grounds.

During a pretrial conference held on January 12, 2010, the parties agreed to bifurcate the case into (1) a trial on standing, and (2) a trial on the merits, if necessary. A view of Plaintiffs’ properties and Locus, as well as Mason, Flint, and Bridge Streets, was taken by the court on March 8, 2010, in the presence of counsel. A one-day trial on the issue of Plaintiffs’ standing followed on March 9, 2010. At trial, this court heard the testimony of each of the three Plaintiffs and expert testimony of Jeffrey Maxtutis, a traffic engineer testifying for Riverview and Kim Eric Hazarvartian, Plaintiffs’ traffic engineer. Twenty-two exhibits and two stipulations of fact were entered in evidence. Plaintiffs and Riverview submitted post-trial briefs on April 16, 2010.

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

1. Defendant Riverview is a Massachusetts limited liability company with a principal place of business at 6 Cider Mill Road in Peabody. The remaining Defendants were members of the BZA at the time of the decision under appeal.

2. Plaintiff Sonia Hernandez owns and resides at a single-family residence at 89 Flint Street in Salem (Hernandez Property), located across the street from Locus in Salem’s Residential Two-Family Zoning District.

3. Plaintiff Richard Laperchia owns, resides at, and has a principal place of business at 7-9 Oak Street in Salem (Laperchia Property). The Laperchia Property is located near the southerly end of Oak Street which runs into Flint Street, near the Development’s proposed driveway (Flint Driveway). The Laperchia Property is located in the Residential Two-Family Zoning District.

4. Plaintiff Lorene Scanlon owns and resides at a residential condominium unit at 75 Mason Street in Salem (Scanlon Property). The Scanlon Property is located in the Industrial Zoning District and abuts Locus.

5. The parties stipulated that the three Plaintiffs are “parties in interest” as defined by G. L. c. 40A, § 11.

6. Plaintiffs’ claim of harm from the Development is increased traffic. [Note 3] Increased traffic volume and congestion are recognized property interests under the City of Salem Zoning Ordinance (Ordinance).

7. Locus is located in the North River Canal Corridor Neighborhood Mixed Use District (NRCC) Zoning District. The Development, as approved by the Salem Planning Board (Planning Board), is for the construction of three, three-story buildings with a total of fifty-five one-bedroom units, seventy-five two-bedroom units, 5,540 square feet of commercial space, and a parking garage with 260 residential spaces, thirty-seven commercial spaces, and twelve spaces reserved for residents along Flint Street.

8. On November 2, 2007, after a duly-noticed public hearing, the BZA granted three variances to Riverview to allow for a minimum lot area of 1,440 square feet per dwelling unit, common building entrances, and construction within the fifty-foot buffer area. These variances permitted Riverview to design a project for 130 residential units.

9. The Ordinance requires separate review of the Development by the Planning Board and issuance of a special permit to allow multi-family use in the NRCC Zoning District. [Note 4-1]

10. On April 17, 2009, after a duly-noticed public hearing, the Planning Board issued a decision (Planning Board Decision), granting the special permit to Riverview. The special permit was subject to the following conditions relating to “Signage and Traffic Calming” (Traffic Calming Measures): (a) installation of an electronic speed monitor on Mason Street; (b) installation of signage and pavement markings as shown in submitted plans; (c) placement of “No Parking – Tow Zone” signage on Mason Street on both sides of the Mason Street driveway (Mason Driveway); (d) signage at the Mason Driveway prohibiting the entrance and exit of trucks; (e) installation of a yellow flashing beacon at the intersection of Flint and Mason Streets; (f) completions of plans and specifications for the design of a traffic signal at the intersection of Mason and Tremont Street and the Mason Driveway; [Note 4-2] (g) installation of a traffic island at the intersection of Oak and Flint Streets if the Planning Department determines that a traffic island is necessary within 6 months following the issuance of the last Certificate of Occupancy. [Note 5]

11. Both the Mason Driveway and the Flint Driveway will provide access to Locus. Per Planning Board requirements, trucks will be prohibited from using the Mason Driveway. The Flint Driveway will be angled left with a “Left-Turn Only” sign to decrease traffic between the Flint Driveway and the intersection of Mason and Flint Streets.

12. Riverview caused a Traffic Impact and Assessment Study (Traffic Study) to be conducted by Earth Tech, Inc., in 2007, which was admitted in evidence as Exhibit 10. [Note 6] The Traffic Study estimates that 871 new vehicle trips will be generated daily as a result of the Development, of which 56 trips will occur during weekday peak morning hour and 87 trips will occur during weekday peak afternoon hour. The Traffic Study’s trip generation estimates take into account the Traffic Calming Measures.

13. Mason, Flint, Oak, Tremont, and Bridge Streets are all existing public streets in Salem surrounding the Development. Tremont Street is a two-way, two-lane street that runs north-south between Mason Street and the Peabody city line. Bridge Street is a two-way street that runs east-west and intersects with the southerly end of Flint Street.

14. Mason Street is a two-way, two-lane street that runs east-west and intersects with the northerly end of Flint Street. Mason Street handles a large volume of traffic daily, particularly at the intersection of Mason and Flint Streets during peak commuting hours. The Traffic Study determined that currently during the morning peak hour, 1,101 vehicles traveling on Mason Street enter the Mason and Flint Street intersection. During the afternoon peak hour, 941 vehicles travel through the Mason/Flint Street intersection.

15. Flint Street is a two-way, two-lane street that runs north-south and narrows at its northerly end, where it meets Mason Street. Flint Street currently handles a large volume of traffic with 6,635 vehicle trips per day, including 765 vehicle trips during the morning peak hour and 663 vehicle trips during the afternoon peak hour, according to the Traffic Study. The Traffic Study projects that the Development will create an additional twenty-seven vehicle trips during the morning peak hour and forty-two trips during the afternoon peak hour.

16. Oak Street is a less heavily traveled side street that runs from Mason Street to the southerly portion of Flint Street. The northerly end of Oak Street where it meets Mason is a two-lane, two-way street. The southerly portion of Oak Street, running approximately from the Laperchia Property to Flint Street, is only one-way toward Flint Street. There is a “One-Way Do Not Enter” sign posted at the southerly end of Oak Street, where it meets Flint Street.

17. Due to the parking of cars on Flint Street, vehicles traveling on Flint Street often must resort to “alternating flow” because there is not enough room for cars to travel in both directions when cars are parked in this manner, particularly at the narrower northerly end of Flint Street. The frequent stopping and maneuvering of vehicles to accommodate vehicles traveling in the other directions sometimes results in congestion on Flint Street. The narrow width of Flint Street near Mason Street also creates conflicts between vehicles trying to enter and exit Flint Street.

18. The Development does not add vehicles on Flint Street in front of the Hernandez Property, but adds vehicles to Mason Street as it passes Flint Street. This creates fewer gaps on Mason Street at the intersection of Flint Street and reduces the opportunities for vehicles on Flint Street to enter Mason Street. Consequently, queuing on Flint Street northbound will increase.

19. The Planning Board Decision requires Riverview to install a flashing beacon at the intersection of Mason and Flint Streets, which will flash yellow in both directions on Mason Street and flash red toward Flint Street. The beacon will operate as a stop sign control on Flint Street, and improve driver awareness of the intersection and act to slow driver speed for vehicles traveling on Mason Street.

20. Laperchia operates a custom cabinetry business from the Laperchia Property and the business requires deliveries by trucks, sometimes twenty-four feet in length, to and from the Laperchia Property. Laperchia makes six to twelve trips daily which require him to drive through the intersection of Oak and Flint Streets since Oak Street is one-way from the Laperchia Property to Flint Street.

21. All people traveling down Oak Street and Oak Street residents, including Laperchia, will have to contend with vehicles exiting the Flint Driveway when turning right onto Flint Street. They will also need to be aware of vehicles traveling southbound from Flint Street to Bridge Street and of vehicles entering the Flint Driveway. During the morning peak hour, the Development will generate an additional nineteen trips from vehicles turning left to exit the Flint Driveway, combined with the 765 vehicles currently traveling up and down Flint Street. The Traffic Study did not include an analysis of the Development’s impacts on the intersection of Oak and Flint Streets.

22. The use of Oak Street as access to the Development’s Flint Driveway is not prohibited, but a “way finding” sign stating “No Traffic to Riverview Place” is to be placed at the proposed island located at Oak and Flint Streets when and if the island is installed.

23. The Scanlon Property is located about 300 feet from the intersection of Tremont and Mason Streets and has two parking spaces. One parking space is located to the rear of the condominium, and is accessible from a driveway off Mason Street. The second parking space, on the westerly side of the condominium, directly abuts Mason Street. Currently, Scanlon does not use the second parking space because it requires her to back out into oncoming traffic on Mason Street. Scanlon also delays her work commute to and from New Hampshire to avoid traffic on Mason and Tremont Streets during peak commuting times. Current traffic volumes on the portion of Mason Street, between Flint Street and Tremont Street, where the Scanlon Property is located, include 838 trips during the morning peak hour and 699 during the afternoon peak hour. The Traffic Study projects that the Development will generate nine additional trips in the morning peak hour, and fourteen during the afternoon peak hour on this portion of Mason Street.

24. With installation of the proposed four-way signal at the intersection of Tremont and Mason Streets, the maximum queue length on Mason Street eastbound approaching Tremont Street with the Development is estimated to be 200 feet.

25. Without installation of the proposed four-way signal at the intersection of Mason and Tremont Streets, the average queue length on Tremont Street southbound approaching Mason Street is projected to increase from 799 feet (without Development) to 808 feet (with Development) during morning peak hours and 362 feet (without Development) to 426 feet (with Development) during afternoon peak hours.

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Plaintiffs contend that the BZA’s decision was arbitrary, capricious, and legally untenable primarily because the Development will greatly increase traffic in the areas around Plaintiffs’ homes. Riverview argues that Plaintiffs lack standing to pursue this action because they have failed to show that they will suffer any cognizable harm as a result of the Development that is special or different from the rest of the community.

This court does not have jurisdiction to hear the merits of Plaintiffs’ appeal unless Plaintiffs have standing as a parties aggrieved by the BZA’s decision. Based on the evidence at this phase of the trial, this court finds that Plaintiffs do not have standing to bring the instant appeal for two reasons. First, Plaintiffs have failed to show that the Development will cause a material increase in traffic. Second, to the extent that traffic will increase in the area of the Development, Plaintiffs have failed to show how any traffic increase will affect them in a way that is special and different from that experienced by the rest of the community.

Prior to trial, the parties stipulated that Plaintiffs are parties-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 and rules that Riverview adequately rebutted Plaintiffs’ presumption of aggrievement through the expert testimony of Jeffrey Maxtutis, Riverview’s traffic expert, and the data contained in the Traffic Study. Therefore, ultimately, Plaintiffs had the burden of proving standing at trial.

Mr. Maxtutis determined that Flint, Mason, and Oak Streets are all heavily traveled existing public ways. The projected increase in traffic for each of these streets will be less than ten percent, taking into account the traffic calming measures Riverview is required to implement. Additionally, the projected increase in traffic would be further diminished if a traffic signal is installed at the intersection of Mason and Tremont Streets. Finally, while traffic will increase generally in the area of the Development, any such increase will not affect Plaintiffs in any way that is different from the impact on the rest of the community. This court credits Mr. Maxtutis’ testimony on these points. Based on that testimony and the other documentary evidence on point, including the Traffic Study, this court holds the evidence sufficient to rebut Plaintiffs’ presumption of standing.

“Standing is an issue of subject matter jurisdiction.” Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 703 (1998). Under G. L. c. 40A (The Zoning Act) only a “person aggrieved” may have standing to appeal the decision of a board of appeals or planning board. “To have standing in any capacity, a litigant must show that the challenged action has caused the litigant injury.” Slama v. Attorney General, 384 Mass. 620 , 624 (1981). The injury alleged must be established “by direct facts and not by speculative personal opinion” and must be “special and different from the concerns of the rest of the community.” Barnevik v. Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992). Further, “the plaintiff must put forth credible evidence to substantiate his allegations. It is well-settled 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.” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005) (emphasis added) (citing Marashlian, 421 Mass. at 724; Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994)). This court finds that Plaintiffs failed to introduce any credible evidence to support their claims of aggrievement once the presumption in their favor receded.

Plaintiffs’ expert testified that according to his calculations, traffic would increase in the area of the Development by an additional 23 trips per day, not accounted for in the Traffic Study. However, even Plaintiffs’ expert conceded that the traffic increase affecting Ms. Scanlon and Ms. Hernandez would be identical to that affecting “[a]nybody passing through that intersection, any member of the general public. . . .” Similarly, Mr. Hazavartian testified that Mr. Laperchia would be affected by a traffic increase when traveling from Oak Street, a public street, onto Flint Street, also a public street. Consequently, He will be affected by traffic in precisely the same way any member of the public traveling to Flint Street from Oak Streets will be affected. Importantly, Plaintiffs’ expert did not present any factual testimony which would support a finding that Plaintiffs would be affected by any traffic increase in a way that other members of the community would not be affected. For example, there was no evidence that increased traffic might create queuing that would back up and block any of the Plaintiffs’ driveways, causing them harm not affecting other people driving in the area of the Development.

As a result, none of the evidence presented by Plaintiffs is the kind of credible evidence necessary to establish their standing in the instant action. Consequently, no trial on the merits of Plaintiffs’ claims will be scheduled and judgment dismissing Plaintiffs’ claims will issue.

Karyn F. Scheier

Chief Justice

Dated: July 20, 2010