ROGER PEPIN v. JOE BELROSE, et al., as they are members of the TOWN OF BLACKSTONE PLANNING BOARD, GERALD RIVET, as he the Blackstone Municipal Inspector, and PAUL BRUYERE, Trustee of the BRUYERE REALTY TRUST

In this action, filed May 27, 2008, Roger Pepin appeals, pursuant to G. L. c. 40A, § 17, from a decision of the Town of Blackstone Planning Board (Board). In its decision, the Board granted Defendant Bruyere a special permit to operate a woodworking shop with fewer parking spaces than currently required by the Town of Blackstone Zoning Bylaw (Bylaw). Plaintiff also seeks an order of mandamus compelling the Blackstone Municipal Inspector (Municipal Inspector) to issue a cease and desist order enjoining Bruyere from continuing the current use of the property at 43 Main Street (Defendant’s Property).

This action follows prior litigation among the parties. In Land Court Case 06 MISC 328868, Plaintiff appealed from a decision of Board, in which it refused to require the Municipal Inspector to issue a cease and desist order enjoining Bruyere from using the building on Defendant’s Property for his woodworking business. Plaintiff had requested enforcement of Blackstone’s parking regulations, alleging that Defendant was using Defendant’s Property without sufficient parking under the then-applicable zoning provisions of the Bylaw. On June 21, 2007, this court issued a Decision Granting Plaintiff’s Motion for Summary Judgment and Denying Defendants’ Cross-Motion for Summary Judgment, holding that the Board exceeded its authority in denying Plaintiff’s appeal. However, this court stayed its judgment to allow Bruyere to apply for relief from parking requirements contained in the Bylaw, noting that relief was available through the special permit process if the Board found attendant “special circumstances.” Thereafter, Bruyere applied for, and was granted, a special permit to operate his woodworking business on Defendant’s Property, despite the lack of required number of parking spaces. It is from the grant of the special permit that Plaintiff now appeals.

A one-day trial was held on July 20, 2010. At trial Defendant Paul Bruyere and Plaintiff Roger Pepin testified. Eleven exhibits were entered in evidence, as well as an Agreed Statement of Facts. At the conclusion of Bruyere’s case-in-chief, Plaintiff moved for a directed finding. That motion hereby is DENIED. All parties submitted post-trial briefs. Based on all the evidence and reasonable inferences drawn therefrom, this court finds the following material facts:

1. Plaintiff is an individual residing at 47 Main Street, Blackstone, on which is located his single-family residence and an accessory parking area (Plaintiff’s Property).

2. Defendants Joe Belrose, Allan Dolinski, Thomas Gillespie, Paul Marvelle, Gerald Rivet, and Kirk Van Dyke were members of the Board at all times relevant hereto. Defendant Gerald Rivet was, at all times relevant hereto, also the Municipal Inspector and was the individual charged with enforcement of the Bylaw.

3. Defendant Bruyere is the owner of Defendant’s Property, which is located in a Commercial Zoning District and a Village Overlay District. [Note 1] Plaintiff’s Property abuts Defendant’s Property, in the same zoning and overlay districts.

4. Bruyere operates a business named Island Cabinets and Millwork on Defendant’s Property. Defendant’s Property is improved by a two story building approximately 10,000 square feet in area, in which Bruyere manufactures and stores goods and maintains his office.

5. Defendant Bruyere and his son are the only employees of Island Cabinets and Millwork.

6. Bylaw Section 123-15B governs the number of parking spaces required for commercial properties within the Town. In relevant part, it provides that there must be one parking space per two hundred square feet of retail space, not less than one parking space per one thousand square feet of storage area, plus one parking space per four hundred square feet of production area, and one space per one hundred eight square feet of office area.

7. Section 123.15 of the Bylaw states:

Adequate off-street parking must be provided to service all increases in parking demand created by new structures or additions or created by change of use. The number of parking spaces provided must be as required by Section 123-15B, unless the special permit granting authority or the [Board] . . .finds that a lesser provision would be adequate for all parking needs because of such special circumstances as shared parking for uses having peak parking demands at different times, unusual age or other characteristics of site users, company-sponsored car-pooling, or other measures which reduce parking demand.

8. On or about April 26, 2006, Plaintiff requested that the Municipal Inspector enforce the parking space requirements contained in Bylaw § 123-15B, against Defendant with respect to Defendant’s Property.

9. By letter dated May 12, 2006, the Municipal Inspector responded to Plaintiff’s enforcement request, stating that he would not issue a cease and desist order. On or about June 9, 2006, Pepin appealed to the Board from the Municipal Inspector’s written refusal to enforce the Bylaw.

10. A public hearing was held on Plaintiff’s appeal on July 19, 2006. The five Board members in attendance voted unanimously against requiring the Municipal Inspector to issue a cease and desist order to Defendant. The Board issued a written decision denying the appeal and filed a copy of the decision with the Blackstone Town Clerk on August 23, 2006. Plaintiff appealed to this court from the Board’s decision on August 31, 2006.

11. By a judgment issued June 21, 2007, this court annulled the Board’s decision, but gave Defendant 90 days within which to apply to the Board for the permits necessary to bring Defendant’s Property into conformance with the Bylaw. This was possible because on May 29, 2007, the Bylaw had been amended to allow certain off-site parking spaces to qualify as parking spaces under Bylaw Section 123-1C(2). [Note 2]

12. Thereafter, the Town entered into a license agreement with Bruyere, whereby it licensed a parcel of Town-owned property to Bruyere for parking (Licensed Property).

13. The Licensed Property is within 350 feet of the entrance to Defendant’s Property, on the same side of Main Street. Plaintiff’s Property is located in between Defendant’s Property and the Licensed Property, with his residence adjacent to Defendant’s Property and his parking area located in between Plaintiff’s house and the Licensed Property.

14. Bruyere has one parking space on Defendant's Property. Four additional cars can be parked on the Licensed Property. [Note 3]

15. On July 26, 2007, Defendant Bruyere applied for a special permit to the Board allowing five parking spaces to serve as sufficient parking under Bylaw Section 123-1C(2).

16. By a decision filed with the Town Clerk on May 5, 2008, the Board granted Bruyere’s application for the special permit, subject to several conditions. [Note 4]

17. Absent the special permit, Defendant would be required to have no fewer than ten parking spaces under the Bylaw.

18. During the winter months, headlights from the cars parking on the Licensed Property might shine on Plaintiff’s house for the short time while the cars are pulling onto the Licensed Property.

19. No more than five cars have ever been parked at the Licensed Property at one time. The nature of Island Cabinets and Millwork is such that cars do not frequently come and go from Defendant’s Property. The hours of operation for Bruyere’s business are 7:00 a.m. to 5:00 p.m.

* * * * * * *

Defendant first asserts that Plaintiff has failed to establish standing in the face of Defendant’s challenge to the presumptive standing Plaintiff enjoys as an abutter to Defendant’s Property. Plaintiff contends that Defendant has not challenged Plaintiff’s presumed standing sufficiently to shift the burden to Plaintiff and that, even if the presumption has receded, Plaintiff has established his 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, 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.” Barvenik v. Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992). Further, “the plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996).

Under G. L. c. 40A, § 11, plaintiffs who are parties-in-interest have the benefit of a rebuttable presumption that they are aggrieved persons. Defendant may rebut this presumption by offering “evidence warranting a finding contrary to the presumed fact.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34 (2006). “Once a defendant challenges the plaintiff’s standing and offers evidence to support the challenge . . . the jurisdictional issue is to be decided on the basis of all of the evidence with no benefit to the plaintiff from the presumption.” Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81 , 89 (2007) (citing Standerwick, 447 Mass. at 34).

Defendant successfully rebutted Plaintiff’s presumption of standing through Plaintiff’s own testimony at trial, after which Plaintiff had the burden to establish his standing, which he failed to do. He testified that he is harmed in a few ways by Bruyere’s business. His primary concern was that customer and employee cars and trucks parking on Main Street (a public way) in front of Defendant’s Property increase the likelihood that someone crossing the street within the crosswalk would be at risk. He did concede, however, that this concern is really about the “public welfare” when asked how his concern could possibly devalue his property. [Note 5] He also expressed concerns that cars associated with Bruyere’s business parking on Main Street are “unsightly.” In summing up Plaintiff’s concerns, his counsel summarized that Plaintiff is “basically hemmed in by the business, the parking lot and the traffic” and inquired, “So anything that goes on basically has an impact on you?” Mr. Pepin responded “Yes.” Plaintiff did not offer any expert testimony to support his speculation that his property would be diminished in value. None of his articulated concerns are sufficient to establish Plaintiff’s standing, as they are neither “special or different from the concerns of the rest of the community,” see Standerwick, at 33, nor are they supported by credible evidence tying them to a diminution of the value of Plaintiff’s Property.

During his re-direct examination, Plaintiff also testified that headlights from the cars parking on the Licensed Property would shine in his house. Plaintiff asserts that such a concern is sufficient to support his standing to bring the instant appeal. This court disagrees. While this concern arguably is within the scope of concerns zoning seeks to protect, see Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. at 722, the evidence failed to support the level of aggrievement necessary to establish Plaintiff’s standing. The Supreme Judicial Court recently refined the parameters of standing in Kenner v. Zoning Bd. of Appeals of Chatham, SJC-10740 (March 11, 2011). Under Kenner, “[a]ggrievement requires a showing of more than minimal or slightly appreciable harm. The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy. . . the analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be ‘impacted’ by such changes.” Kenner, SJC-10740 (internal citations omitted). The evidence established that the four-space parking area on the Licensed Property is separated from Plaintiff’s residence by the Plaintiff’s own similarly-sized parking area on Plaintiff’s Property. Further, Bruyere’s business operates during regular business hours of 7:00 a.m. to 5:00 p.m., so the number of hours during which people parking on the Licensed Property would have headlights on is restricted to the winter season and just the last hour or so of each workday during that season. The court finds that, even crediting Plaintiff’s testimony about the headlights, any disturbance would occur infrequently and each instance would last a very short period of time, as cars maneuver into their spaces. Any harm therefore would be minimal. Under Kenner, a minimal, infrequent disturbance is not sufficient to rise above the level of “impact” to constitute “aggrievement.”

Accordingly, Plaintiff has failed to establish aggrievement sufficient to prove his standing in the face of Defendant’s challenge. Therefore, Plaintiff’s Complaint must be dismissed. [Note 6]

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: March 24, 2011