MISC 05-308224

September 24, 2010


Trombly, J.



These cases come before the Court at this time on joint motion of the Defendants for summary judgment pursuant to Mass. R. Civ. P. 56(b) seeking dismissal of both actions due to Plaintiffs’ alleged lack of standing under G. L. c. 40A, § 17 and G. L. c. 41, § 81BB. Defendants contend that Plaintiffs have failed to demonstrate that they are “persons aggrieved” by the decisions under appeal which granted to Defendants both approval of a subdivision plan and certain dimensional variances. A brief recitation of the events which brought us to this point will be helpful.

Both of these cases involve the Berkshire Mall in the Town of Lanesborough. Case No. 05 MISC 308624 is an appeal by Plaintiffs from a decision of the Lanesborough Planning Board approving a subdivision plan submitted by Berkshire Mall which created two lots at the mall, one of which would remain as the main portion of the mall while the other would be conveyed to Target Stores, which was to be the anchor tenant therein. The second case, numbered 05 MISC 308224, is an appeal by Plaintiffs from a decision of the Lanesborough Zoning Board of Appeals (“ZBA”) granting certain variances to Berkshire Mall which would provide zoning relief from (1) the method of calculating required zoning spaces; (2) signage restrictions; (3) setback and frontage requirements; and (4) lot coverage requirements.

Most, if not all, of the relief sought was deemed necessary at the time because the owners of the mall intended to demolish a large store formerly occupied by an Ames Department Store and to replace it with a larger retail space to be occupied by Target. Whereas Ames had leased their space from the mall owners, Target has a company policy requiring it to be the owner of the land and building in which it operates. On or about February 17, 2005, Lanesborough Enterprises Newco, LLC., owners of the mall, filed an application for a special permit with the Zoning Board of Appeals (“ZBA”) proposing the construction and operation of an expanded anchor store and related site improvements at the mall. The Zoning Board, after a duly noticed hearing, granted the special permit on March 30, 2005. There was no appeal taken from the granting of the special permit and the Target Store eventually opened for business in March of 2006.

On February 25, 2005, after the filing of the aforementioned application for special permit but before it was acted upon, the owners of the mall filed two applications with the municipal boards. In a filing with the Planning Board, they sought approval of a definitive subdivision plan dividing the mall property into two parcels, one of which would include the major portion of the mall while the other was intended to create a separate parcel which could be conveyed to Target in conformity with its company policy of ownership. The Planning Board signed the plan and entered its Decision on or about March 28, 2005.

Also on February 25, 2005, the mall owners filed an application with the ZBA seeking dimensional variances concerning the land to be sold to Target. In a Decision dated March 16, 2005, and following a public hearing, the Board issued a Decision granting the variances. Plaintiffs, owners of land abutting and in the vicinity of the mall property, filed the cases currently before the Court, appealing the Decision and plan approvals of both boards. Later, instead of selling a separate lot to Target, as originally planned, and not wanting to be delayed by the then pending appeals, the mall owners sold Target a condominium unit in the mall. It is their contention that they therefore no longer needed the relief granted by the Boards.

On August 30, 2006, Defendants filed a Joint Motion to Dismiss both appeals for lack of standing. This Court denied the motion on February 27, 2007, finding that Plaintiffs’ expert reports provided credible evidence that plaintiffs would be aggrieved by a potential increase in traffic stemming from the addition of the Target Store to the mall.

Little or no action is reflected on the Court’s docket for the next few years. It appears there were some attempts to settle the dispute which were not successful. Defendants filed a motion on December 18, 2009 seeking dismissal of the actions for lack of prosecution. The motion was argued and taken under advisement on March 18, 2010, having been continued twice on request of the parties and their counsel. Plaintiffs contend that the lack of action of the cases was due to attempts at settlement and also due to discovery issues. Defendants disagree, accusing the Plaintiffs of dragging their feet. On April 16, 2010, this Court (Trombly, J.) denied the motion to dismiss brought by the Defendants, but ordered the parties to file appropriate motions or pleadings within sixty days to “raise the issue of Plaintiffs’ standing to bring these actions”. On June 15, 2010, pursuant to that order, the Defendants filed the motion currently before the Court contesting Plaintiffs’ standing, a memorandum in support thereof, and accompanying exhibits. Plaintiffs responded with an opposition thereto and memoranda in support of the opposition. Defendant filed a response to Plaintiff’s pleadings, together with a motion to strike Plaintiffs’ expert reports. The motions and opposition were fully argued before the Court on September 8, 2010 and are the matters currently before the Court.

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As noted above, Defendants have moved for summary judgment in these cases on the issue of whether Plaintiffs have standing to bring and prosecute these appeals. 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 there are no material facts in dispute and that the case is therefore ripe for summary judgment. Quite simply, if Plaintiffs do not have standing as aggrieved parties, the actions must be dismissed.

Status as an aggrieved party is a jurisdictional prerequisite to an appeal of a decision of the Planning Board and the Zoning Board of Appeals, under G.L. c. 41, § 81BB and G.L. c. 40A, § 17, respectively. Rattner v. Planning Bd. of West Tisbury, 45 Mass. App. Ct. 8 (1998); Reiley v. Janco Cent. Inc., 38 Mass. App. Ct. 984 (1995); Circle Lounge & Grille, Inc. v. Bd. of Appeals of Boston, 324 Mass. 427 (1949). The Supreme Judicial Court has defined the phrase “person aggrieved” as a person whose legal rights have been infringed upon 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, Inc., 324 Mass. 427 , 430-31; 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). The standard of review is whether the Plaintiffs have a plausible claim of a particularized private injury supported by credible evidence. Butler v. City of Waltham, 63 Mass. App. Ct. 435 (2005); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 (1996).

Defendants contend in the present motion that any such injury, if any, caused to Plaintiffs is or was caused by the existence of the mall itself, as authorized by the unappealed special permit, and not by the plan approval or dimensional variances at issue in this case. They emphasize that Plaintiffs did not take an appeal from the ZBA Decision of March 30, 2005 and contend, citing Butler, that any claimed infringement of plaintiffs’ rights “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.” (Emphasis added) Id. at 441. It is their contention that this failure to file a timely appeal from the granting of the special permit precludes Plaintiffs from contesting it in these actions appealing different decisions of the two boards.

For their part, Plaintiffs contend they were injured as a result of zoning relief granted in the form of plan approval and variances granted by the Boards for dimensional, signage, and parking requirements. They claim injuries resulting from traffic and safety concerns related to, and allegedly exacerbated by, the “insufficient” parking allowed by the parking variance, and the diminution of value to Plaintiffs’ property as a result of the visible signs that would not have been permitted without the signage variance. In response to Defendants’ arguments concerning standing, Plaintiffs aver that the special permit was “piggy-backed” on this variance and plan relief to permit the development, and that “to the extent Plaintiffs’ injuries flow from the project as a whole, they are also sufficient to confer standing”(emphasis added).

Although the court, in its previous denial of summary judgment, agreed that the Plaintiffs’ provided credible evidence showing injury in need of relief, the court did not, at the time, address the issue of whether these injuries, in the language of Butler, “flowed from the Boards’ actions”. In addressing that issue here, the Court agrees with the Defendants that any injuries claimed to have been suffered by Plaintiffs did not flow from, nor was it caused by, the granting of the special permit.

The record does not reveal any evidence whatsoever that the Plaintiffs have been aggrieved by the relief from dimensional requirements. Therefore, they cannot claim standing based on this variance. As for the relief from signage, Plaintiffs have only offered speculative evidence at best to show harm. In the ample time period granted to both sides to conduct discovery, the Plaintiffs’ have not brought forward any experts to substantiate their claim of diminution to property value as a result of the added signs. Now that the discovery period has been ordered closed, the Court concludes that Plaintiffs’ have not met their burden to prove they have been aggrieved by this variance. The only variance under which Plaintiffs can possibly claim standing is the relief from the Town’s parking requirements.

Plaintiffs argue that because the Town allowed the Target store to have fewer parking spaces than the By-Laws require, the parking lot for the store is operating inadequately and causing back-ups on the site driveway which results in congestion at the intersection and in the adjacent roadway network. However, as the Defendants point out, and as the record reveals through expert testimony, the traffic congestion on the roadways is a direct result of the increase in traffic, i.e. more vehicles, due to the higher demand related to the addition of the Target store. The traffic congestion is not related, as Plaintiffs claim, to the inadequate parking supply. The Defendants have sufficiently proven, based on two separate credible transportation manuals, that this is the case. Accordingly, this Court concludes that the Plaintiffs’ claimed injuries resulting from traffic congestion are not directly related to the Boards’ variance granting relief from parking regulations or from the subdivision plan approval.

Finally, the Plaintiffs contend that but for the issuance of these variances and plan approval, the special permit could not have been granted to the Defendants and the Target store could not have been built. As a result, as noted earlier, they contend that the variances were “piggy-backed” on to the special permit and that if traffic is caused by the addition of more vehicles, it is still related to the issuance of the variance. This court disagrees. When the Defendants’ sought a special permit to expand the Mall and construct the Target store, it applied for subdivision approval for the sole purpose of being able to grant Target ownership of the land upon which the store is built. The variances granted were to satisfy the requirements for subdivision approval and compliance with zoning regulations regarding set-backs and sideline requirements which would come into play if that conveyance took place. They were not part of the special permit. Therefore, when the Mall amended its plans and created a condominium which Target could then purchase, the subdivision plans, and related variances, became unnecessary and were not used. If the variances were born out of the need to satisfy the Town By-Laws for a Special Permit, with or without subdivision plan approval, as the Plaintiffs contend, no evidence has been presented to prove so.

The Target store has already been constructed in accordance with the Special Permit and, as the Defendants point out, any relief that can be granted by this court to the Plaintiffs will be to no avail. The Defendants exercised their right to expand the Mall in accordance with the Special Permit granted, and whereas the Special Permit is not an issue in this case, the court is not willing or able to interfere.

For all of these reasons, it is

ORDERED that Defendants’ joint motion for summary judgment be, and is hereby, ALLOWED, the Court finding and ruling that the Plan Approval by the Planning Board and the granting of the variances by the ZBA were not the cause of any injury or harm claimed to have been suffered by the Plaintiffs. In any event, the Special Permit under which the mall was reconstructed and expanded was not appealed and was not at issue in this action. It is further

ORDERED that both actions must therefore be, and are hereby, dismissed with prejudice.

Judgment to enter accordingly.

By the Court. (Trombly, J.)