MISC 09-399701

September 27, 2010

Sands, J.


Plaintiff filed its unverified complaint on April 30, 2009, appealing, pursuant to the provisions of G. L. c. 40A, § 17, a decision of Defendant Town of Milton Board of Appeals (the “ZBA”) which granted a use variance and a special permit to Defendant Thomas Coulter (“Coulter”) (together with the ZBA, “Defendants”) pertaining to property located at 919 Blue Hill Avenue in Milton, Massachusetts (“Locus”). A case management conference was held on July 1, 2009. At a hearing held on February 19, 2010, this court allowed Defendants’ Motion to Remand the matter back to the ZBA, and issued its Order for Remand to the Milton Board of Appeals. On April 15, 2010, the ZBA issued its remand decision; on May 3, 2010, Plaintiff filed its First Amended Complaint, appealing the remand decision of the ZBA.

Plaintiff filed its Motion for Summary Judgment on May 14, 2010, together with supporting memorandum, Statement of Material Facts, and Appendix including Affidavits of Matthew J. Dunn, Esq. and Frederick Lydon. On June 14, 2010, the ZBA filed its Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Additional Material Facts, and Appendix including Affidavits of William B. Clark, Jr., Frederick G. Barry, Jr., Esquire, and Diane Colligan. Coulter filed his support of the ZBA’s Cross-Motion on June 16, 2010. Plaintiff filed its Opposition to Cross-Motion and Reply on July 14, 2010. A hearing was held on all motions on August 30, 2010, at which time 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. 56(c).

The following material facts are not in dispute:

1. The Zoning Bylaws of the Town of Milton (the “Bylaws”) were adopted on February 10, 1938.

2. Locus is located in a Residence A District, which allows single-family dwellings with certain accessory uses. Section III(A)(7)(d) of the Bylaws provides:

Any of the following uses, if authorized by permit issued by the Board of Appeals and subject to appropriate conditions, limitations, and safeguards stated in writing by the Board of Appeals and made a part of the permit: . . . . (d) On a parcel of five acres or less a greenhouse or nursery selling only produce raised on the premises; provided, however, that greenhouses and nurseries in single residence districts shall be permitted to sell, only during the Christmas season, cut trees, Christmas trees, boughs, holly and wreaths grown or fabricated elsewhere than on the premises.

Section III(B)(1)(d) of the Bylaws states that the following use is not an “accessory use” in a Residence A District:

The sale of produce not raised on the premises unless, in the case of a commercial greenhouse maintained on any lot of less than five acres established and doing a non-conforming business, a special permit is granted by the Board of Appeals pursuant to the provisions of Section IX hereof.

Section IX(D) of the Bylaws provides:

Appeals from an order or decision of an administrative officer and appeals or petitions involving variances from the terms of the bylaw including use variances shall be dealt with by the Board of Appeals in accordance with the provisions of General Laws (Ter. Ed.), Chapter 40A, as amended. The Board of Appeals shall have the authority to grant use variances.

3. Coulter purchased Locus in 1991. Locus is situated in a Residence A District under the Bylaws. Locus is 0.85 acres in size upon which a four-bedroom, two-bath house was built in 1963. A detached garage was constructed on Locus in 1999.

4. Plaintiff’s property is located at 175 Atherton Street in Milton (“Plaintiff Property”). Plaintiff Property contains a single-family residential dwelling, and is located in a Residence A District and is the rear abutter of Locus.

5. By decision dated April 9, 1962, the ZBA issued a Special Permit, with conditions (“Special Permit 1”) to Edward F. Fleming (the owner of Locus at the time), personally (including any assistants) “for maintaining a greenhouse, and to erect and maintain on said lot a single family dwelling with attached greenhouse 24' 9" x 51' 9". . . ”

6. By decision dated September 10, 1964, the ZBA issued a Special Permit, with conditions (“Special Permit 2”) to Edward F. Fleming, personally (including any assistants) “for the erection and maintenance of a greenhouse 31' 10 1/4" by 103' 4 5/8" and attached potting shed 32' x 25' at [Locus] for the use thereof for selling only produce raised on the premises; said greenhouse to be in addition to existing greenhouse and attached dwelling. . .”

7. By decision dated July 13, 1984, the ZBA issued a Special Permit, with conditions (“Special Permit 3”) and Variance (“Variance 1”) to David I. Fleming (nephew of Edward F. Fleming, deceased) “for the conduct thereon of a florist business as presently operated . . .” [Note 1], [Note 2] The hours of operation were listed as 8:00 A.M. to 6:00 P.M., seven days a week, to be extended on certain holidays.

8. The Milton Building Commissioner issued a “Cease and Desist Order” dated December 9, 1994, with respect to the operation of the florist business on Locus pursuant to Special Permit 3 and Variance 1, stating that no sales could occur “without going before the Board of Appeals.” [Note 3]

9. By decision dated February 6, 1996, the ZBA granted a Temporary Variance, with conditions (“Variance 2”) to Coulter “to allow the continuation of the operation of the florist business, the landscape business and the sale of Christmas trees and decorative pumpkins during the appropriate seasons at [Locus] . . .” [Note 4] Variance 2 expired on February 26, 1999.

10. By decision dated October 10, 1996, the ZBA granted a Modification of Special Permit 3 and Variances 1 and 2, with conditions (the “1996 Modification”), “so as to permit the construction of a detached garage for the storage of trucks and trailers used in the conduct of the non-conforming landscape business at [Locus] . . .” [Note 5]

11. By decision dated April 21, 2009, the ZBA unanimously issued a special permit, with conditions, to operate a landscape business on Locus from 9:00 A.M. to 5:00 P.M. on Sundays (“Special Permit 4”). [Note 6], [Note 7], [Note 8] Special Permit 4 also allowed Coulter to “sell fruits, vegetables, flowers and Christmas trees seasonally from a display tent at the premises,” as well as “sell and store certain non-perishables on site, including shrubs, trees, mulch, loam, fertilizer, stone pavers, stone dust and gravel, commensurate with level and seasonal nature of the landscaping business.” Special Permit 4 was good only for three years from the recording of Special Permit 4 with the Milton Town Clerk.

12. The ZBA issued another decision on November 2, 2009, on a vote of 2-1, to uphold the decision of the Building Commissioner not to take enforcement action on Plaintiff’s complaint that the terms of Special Permit 4 were being violated (by the use of a front end loader, a bob cat machine and a large chemical spraying machine on Locus).

13. On remand of Special Permit 4, the ZBA issued another decision dated April 15, 2010, granting a variance, with conditions (“Variance 3”), which incorporated all of the terms of Special Permit 4.


Plaintiff objects to the issuance of Variance 3 and Special Permit 4 to Coulter relative to Locus. Defendants first challenge the standing of Plaintiff to bring this action, and then argue that Variance 3 and Special Permit 4 were validly issued. I shall address each of these issues in turn.

Plaintiff’s 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 plaintiff is presumed to be a “person aggrieved” if it is a “party in interest” pursuant to G. L. c. 40A, § 11. [Note 9] G. L. 40A, § 11 goes on to state that “[t]he assessors maintaining any applicable tax lists shall certify to the permit granting authority or special permit granting authority the names and addresses of parties in interest and such certification shall be conclusive for all purposes.” 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, a presumption of standing is rebuttable. See Watros v. Greater Lynn Mental Health and Retardation Ass’n, Inc., 421 Mass. 106 , 111 (1995). In order for a defendant to rebut the presumption of standing, a defendant must offer evidence “warranting a finding contrary to the presumed fact.” Id. If standing is properly challenged, standing is then decided on “all the evidence with no benefit to the plaintiff from the presumption.” Marotta, 336 Mass. at 204. See also Marashlian, 421 Mass. at 721 (“A review of standing based on ‘all the evidence’ does not require that the factfinder ultimately find a plaintiff’s allegations meritorious. To do so would deny standing, after the fact, to any unsuccessful plaintiff”). Without the presumption, “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 Aldermen 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” has 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.

Plaintiff is an abutter to Locus and, thus, is a “party in interest” as this term is defined in G. L. c. 40A, § 11, and, as such, has presumed standing to challenge Variance 3 and Special Permit 4. Plaintiff has alleged harms of air quality, lighting, vibration, noise, smell, visual impact, residential character of the surrounding neighborhood, and diminution in value of Plaintiff Property. As a result of Plaintiff’s presumed standing, the burden shifts to Defendants to produce evidence that rebuts the harms alleged by Plaintiff. “In a summary judgment context, a defendant is not required to present affirmative evidence that refutes a plaintiff's basis for standing.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35 (2006) (citing Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991)). Thus, evidence rebutting Plaintiff’s alleged harms may be in the form of showing that Plaintiff has not substantiated its claims of harm.

As Defendants allege, Plaintiff gives no basis whatsoever for harms related to “air quality, lighting, vibration, noise, smell and visual impact.” Plaintiff has not filed any affidavits in this regard but for one of Frederick A. Lydon, the beneficiary of Plaintiff trust. The Lydon Affidavit merely cites that such harms exist without giving any factual basis for such allegations. The Lydon Affidavit enumerates the activities which Coulter performs on Locus, without relating such activities to the alleged harms. Such itemization of harms amounts to speculative harms at best. Moreover, many of these cited harms are specifically prohibited by Special Permit 4 and Variance 3. [Note 10]

Plaintiff also alleges aggrievement by claiming that Variance 3 and Special Permit 4 are inconsistent with the residential character of the neighborhood surrounding Locus and Plaintiff Property. While protecting the integrity of a zoning district can be a legitimate zoning interest, see Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 478 (1986), such an interest fails to confer “a separate and independent basis for standing absent a cognizable injury.” Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 215 (2003). Plaintiff, however, provides no affidavit evidence in this regard rather than a general statement in the Lydon Affidavit. In addition, the harm alleged is not particularized to Plaintiff, but is general to the neighborhood. See Barvenik, 33 Mass. App. Ct. at 132; Butler, 63 Mass. App. Ct. at 440. [Note 11]

The final harm raised by Plaintiff relates to a purported diminution in value of Plaintiff Property. Diminution in value can confer standing in zoning appeals, see Tsagronis v. Bd. of Appeals of Wareham, 415 Mass. 329 , 330 n. 4 (1993); however, in order to do so, a plaintiff must establish that such decrease in property value is a “derivative of or related to cognizable interests protected by the applicable zoning scheme.” Standerwick, 447 Mass. at 31-32. In this context, Plaintiff provides only his personal affidavit in which he concludes that the commercial uses allowed by Special Permit 4 and Variance 3 adversely impact the marketability and value of Plaintiff Property.

This court is aware of the rule that “permits an individual owner to testify to the value of real or personal property . . . .” Winthrop Prods. Corp. v. Elroth Co., 331 Mass. 83 , 85 (1954). This rule “does not rest upon . . . holding the legal title, but is based upon . . . familiarity with the characteristics of the property, . . . knowledge or acquaintance with its uses, and . . . experience in dealing with it.” Id. Notably, however, “[w]hether such a witness is qualified is a preliminary question of fact to be decided by the trial judge.” Id. See Clark v. Mead Realty Group, Inc., 67 Mass. App. Ct. 491 , 498 (2006) (upholding trial judge’s exclusion of opinion testimony by property owner about the value of his parcel). Contra Epstein v. Bd. of Appeal of Boston, No. 09-P-211, slip op. (Mass. App. Ct. September 21, 2010) (finding that a non-expert property owner was “abundantly qualified” to provide opinion testimony as to diminution in property value). [Note 12] The facts in the case at bar do not demonstrate that Plaintiff is qualified to opine as to the potential impact upon the value of Plaintiff Property based on the issuance of Variance 3 and Special Permit 4. [Note 13] Moreover, Plaintiff’s affidavit provides no analysis or figures relative to the value of Plaintiff Property. [Note 14] In response, Defendants provide affidavit testimony of Frederick G. Barry, Esq., which suffers from the same problem as Plaintiff’s affidavit: the affidavit attaches an unsworn report of a real estate broker. If it could be used, such report provides valuations of Plaintiff Property and an analysis which explains the basis for such valuation. However, this report is ultimately immaterial as it is unsworn, and as this court may not compare the weight of the parties’ respective expert affidavits. See Michaels v. Bd. of Appeals of Wakefield, 71 Mass. App. Ct. 449 , 453 (2008). In short, Plaintiff’s affidavit fails to adduce the “credible evidence” required to confer standing. Butler, 63 Mass. App. Ct. at 441 (noting that “credible evidence” consists of both a quantitative and a qualitative component).

As Defendants have, through their own affidavits as well as pointing out a dearth of evidence for Plaintiff, successfully offered evidence that “warrant[s] a finding contrary to the presumed fact,” Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003), the ultimate question of Plaintiff’s standing shall be decided on “all the evidence with no benefit to the plaintiff from the presumption.” Marotta, 336 Mass. at 204. While this court may not weigh the testimony of the parties’ respective experts, Michaels, 71 Mass. App. Ct. at 453, “[i]n this context, standing becomes, then, essentially a question of fact for the trial judge.” Marashlian, 421 Mass. at 721.

As a result, I find that Plaintiff lacks standing to challenge Special Permit 4 and Variance 3. [Note 15]

As a result of the foregoing, I DENY Plaintiff’s Motion for Summary Judgment and ALLOW Defendants’ Cross-Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III


Dated: September 27, 2010


[Note 1] The preamble to the decision stated that Variance 1 was needed because “the florist business in 1984 is such that it cannot be conducted by selling only produce raised on the premises and the Applicant was advised that a variance would be necessary.”

[Note 2] Neither Special Permit 3 nor Variance 1 stated that it was personal to David I. Fleming.

[Note 3] The Cease and Desist Order is not a part of the summary judgment record.

[Note 4] The florist business was allowed to operate seven days a week, 8:00 A.M. to 6:00 P.M. The landscape business was not allowed to operate on Sundays.

[Note 5] The 1996 Modification had no expiration date.

[Note 6] Under Variance 2, the owner of Locus was already permitted to operate a landscape business from 8:00 A.M. to 6:00 P.M. on Monday through Saturday of each week.

[Note 7] Conditions listed in Special Permit 4 are as follows:

1. Existing portable toilet located near the rear of the property must be removed and no portable toilet may be maintained.

2. No more than two pick up trucks, five dump trucks and six 14 foot trailers may be located and stored at Locus.

3. The hours of operation shall remain as previously approved, 8 AM to 6PM seven days a week (except holidays, when they are extended).

4. A forty yard dumpster may be maintained at Locus.

5. The owner of the business at Locus shall reside at and maintain his principal residence at Locus.

6. The Applicant shall take reasonable steps to ensure that stockpiles of materials are maintained so as to reduce the impact of odors and dust upon neighboring properties.

7. The Applicant shall take all reasonable steps to ensure that lighting, including any and all lights used for the prevention of theft, shall be reasonably sited so as not to interfere with neighboring properties.

8. The Applicant may develop signage that is appropriately designed to be consistent with signage used by other businesses in the area.

9. The detached garage already approved may continue as a nonconforming pre-existing structure.

[Note 8] It is unclear whether Special Permit 4 and/or Variance 3 were also a renewal of lapsed Variance 2. It appears that the ZBA, in issuing the 1996 Modification, treated Special Permit 3 and Variance 2 as if they were still in existence.

[Note 9] The term “parties in interest” is defined in G. L. c. 40A, § 11 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, . . .

[Note 10] Furthermore, it is arguable that Special Permit 4 and Variance 3 only relate to operation of the landscape business on Sundays. See supra note 8. The major portion of the landscape business operations on the other six days may not be a part of the issues on appeal.

[Note 11] It should also be noted that landscape activity on Locus goes back forty-eight years. Moreover, one of the affidavits proffered by Defendants, the Affidavit of William B. Clark, Jr., Director of Planning and Community Development, cites the location of Locus on “a busy thoroughfare connecting the Town of Milton and the Mattapan section of Boston,” resulting in “traffic and related noise.”

[Note 12] Epstein involved opinion testimony from an abutting property owner who had more than ten years of experience in the rehabilitation and management of an adjacent, four-story residential condominium building. Moreover, this owner owned and rented multiple units in such building and controlled and rented five other units in the same neighborhood.

[Note 13] Moreover, Plaintiff’s alleged diminution in light and views are not of the sort that might reduce the value of Plaintiff Property, “per se.” This is not a case where “elaborate expertise would not be essential . . . .” Epstein, No. 09-P-211, slip op. (Mass. App. Ct. September 21, 2010). In Epstein, the Appeals Court stated that “elaborate expertise” was not a prerequisite for a valuation opinion by an abutting property owner given the circumstances of that case. The offending structure at issue in Epstein was a four-story structure which sought to replace an existing single-story building. This proposed structure would occupy most of the parcel, would reach the same height as the abutting building, and would result in only a foot of space separating the two buildings at certain points. Id. Such exceptional circumstances do not exist in the case at bar.

[Note 14] Plaintiff attaches to his affidavit copies of two unsworn letters from real estate brokers which are filled with rank hearsay of reports to them by potential buyers that such buyer would not be interested in the purchase of Plaintiff Property because of noise related to traffic and the presence of porta-potties. Even if these letters could be used as evidence, they do not go to the issue of diminution in value, and they relate to matters which are conditions to Special Permit 4 and Variance 3.

[Note 15] It should be noted that, in the event that this court were to reach the merits of the validity of Special Permit 4 and Variance 3, it appears likely that Special Permit 4 would be upheld, based on the history of Locus, with almost fifty years of florist use, together with numerous special permits and variances which have not been challenged. Moreover, special permit granting authorities have a great deal of discretion in granting special permits. See e.g., Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381-82 (2009); Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001).