PHILIP LUNDBERG, SUSAN LUNDBERG, RYAN MURPHY, JEAN WALL and EDWARD WALL vs. RICHARD DIMES, PETER ROACHE, JOHN CROSBY, DAVIS PROCTOR and PETER BOYLE, as they are members of the TOWN OF WINTHROP PLANNING BOARD, and WINTHROP COVE REALTY TRUST

Plaintiff Tina P. Brzezenski, Trustee of Winthrop Cove Realty Trust (the "Trust") filed its unverified Complaint (03 MISC 293428) on October 15, 2003, appealing, pursuant to G. L. c. 40A, § 17, a decision (the "ZBA Decision") of Defendant Town of Winthrop Board of Appeals (the "ZBA") which approved, with conditions, a special permit and variances requested by the Trust relative to a conversion of property owned by the Trust and located at 495 Pleasant Street, Winthrop, MA ("Locus") from a hospital to condominium units. [Note 1], [Note 2] Plaintiffs ("Abutters 1") Philip Lundberg ("Philip"), Susan Lundberg ("Susan"), Ryan Murphy ("Ryan"), Jean Wall ("Jean"), Edward Wall ("Edward"), Carl Lee, Winston Williams, Charles Evans and Linda Rand filed their unverified Complaint (03 MISC 293438) on October 14, 2003, appealing the ZBA Decision. [Note 3] On August 24, 2005, this court consolidated these two cases (the "Consolidated Cases"). The Consolidated Cases were scheduled for a pretrial conference on July 23, 2007. This court allowed an Assented Motion to Stay Proceedings for the Consolidated Cases filed on July 16, 2007, based on the rezoning of Locus in a Special Development Overlay District ("SDOD") and the need to file for a new special permit. [Note 4]

Plaintiffs Philip, Susan, Ryan, Edward and Jean ("Abutters 2") filed their unverified Complaint (09 MISC 396124) on March 23, 2009, appealing, pursuant to G. L. c. 40A, § 17, the decision (the "Planning Board Decision") of Defendant Town of Winthrop Planning Board (the "Planning Board") which unanimously approved a Project Plan Review Special Permit (the "Special Permit") under the SDOD for the Trust to convert the former hospital on Locus to seventy-four condominium units. On April 24, 2009, the Trust filed its Answer. The Trust filed its Motion for Summary Judgment on December 14, 2009, together with supporting memorandum, Statement of Material Facts, Index including excerpts of Depositions of Philip Lundberg, Jean Wall, and Edward Wall, and Affidavits of Tina P. Brzezenski and James Cipoletta, Esq. Abutters 2 filed their Opposition, together with supporting memorandum, Statement of Additional Facts, and Affidavits of Philip Lundberg, Jean Wall, Edward Wall, and William R. DiMento, Esq. On March 2, 2010, the Trust filed its Reply. A hearing was held on the summary judgment motion on April 12, 2010, 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. 56(c).

I find the following material facts are not in dispute:

1. Locus is located at the corner of Pleasant and Lincoln Streets in Winthrop, and contains approximately 129,144 square feet of land. A hospital has existed on Locus since the early 1900s, containing approximately 99,750 square feet. The hospital ceased operations on Locus in 1999, and the East Boston-Winthrop Community Health Center opened soon after and continued in operation until approximately 2001 - 2002.

2. The Trust purchased Locus in February 2001. In August 2008, the Trust applied to the Planning Board for the Special Permit for Locus under the SDOD. On February 24, 2009, the Planning Board issued the Planning Board Decision, approving the Special Permit, and allowing the Trust to construct seventy-four residential condominium units on Locus (the "Project") with 128 on-site parking spaces. [Note 5] All construction will take place within the existing footprint of the hospital building. The Planning Board Decision was filed with the Winthrop Town Clerk on March 3, 2009.

3. Philip owns property located at 70 Lincoln Street, Winthrop. He lives there with his wife Susan and his son Ryan. [Note 6] This property is situated within 150 feet of Locus, but does not abut Locus or other property which abuts Locus.

4. Jean and Edward own and live at property located at 64 Lincoln Street, Winthrop. Jean has lived at the property since 1965, and Edward has lived at the property since 1989. Their property is situated within approximately 100 feet of Locus, but does not abut Locus or other property which abuts Locus.

******************************************

At oral argument on the summary judgment motion, the Trust and Abutters 2 confirmed that the ZBA Decision is moot and the Consolidated Cases will not be pursued. The parties have also agreed that the Trust's summary judgment motion only addresses the issue of the standing of Abutters 2, and not the merits of the validity of the Special Permit. Finally, the parties have agreed that none of Abutters 2 have presumed 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 plaintiff is presumed to be a "person aggrieved" if it is a "party in interest" pursuant to G. L. c. 40A, § 11. [Note 7] Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). A presumption of standing is rebuttable. See Watros v. Greater Lynn Mental Health and Retardation Association, 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. Board 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" consists of

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 none of Abutters 2 have presumed standing, the burden is on them to assert their alleged harms. If they cannot do that, the Trust need only show that they have no reasonable expectation of proving a legally cognizable injury. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35 (2006). Susan and Ryan do not have an ownership interest in any property at issue in this case. Moreover, neither one of them has asserted or produced any evidence relative to harms. As such, I find that Susan and Ryan have no standing to challenge the Planning Board Decision. This court shall address the claims of the remaining three Abutters 2.

Philip.

Philip gave both affidavit and deposition testimony relative to alleged harms resulting from the Special Permit. In his Affidavit, Philip cites increased traffic, decreased parking availability and infrastructure (insufficient water flow and pressure for fire suppression, and insufficient capacity to furnish sewer service) as concerns. These types of harms, if proven, are legitimate and recognized harms for standing. The burden, however, is on Philip to give credible evidence of such harms.

Philip raises three issues pertaining to the Planning Board Decision in regards to decreased on-street parking. First, Philip complains of a general fear that the Project will make on-street parking more difficult for him. Next, Philip complains that a proposed parking area for the Project, which would be in front of the building, is not in conformity with § 17.48.110.G of the Bylaw. [Note 8] Finally, Philip contends that the Planning Board Decision allows for tandem parking which is non-compliant with § 17.20.050.C of the Bylaw. I shall address each of these parking concerns in turn.

Plaintiffs point out that after the Planning Board issued the Planning Board Decision approving the Project, it has not made any determination that the plans submitted by the Trust and cited in the Planning Board Decision conform to the requirements of the Bylaw, and Plaintiffs also point out that the Trust has not filed any subsequent plans or revisions since the issuance of the Planning Board Decision. [Note 9] This court must rely on the Planning Board Decision, and the findings and conditions therein, in determining whether all parking requirements will be met.

As the Supreme Judicial Court noted in Marashlian, if "some public parking spaces would be lost," that is sufficient to confer standing upon Plaintiffs. Thus, even if only a few on-street parking spaces were to be lost as a result of the Project, Philip might have a recognizable legal injury which would thereby confer standing. However, a reasonable reading of the Planning Board Decision indicates that the Project must comply with the parking requirements of the Bylaw, and that such parking will all be on-site.

In his Affidavit Philip states that he "fears and believes" that there will be decreased parking on both Lincoln Street and Marshall Street, where Philip now parks his vehicle, as a result of the Project. [Note 10] His fear arises out of his belief that there will be insufficient off-street parking to accommodate the Project. Contrary to Philip's contention that each unit within the Project needs two parking spaces each, however, § 17.48.110.C.2 requires in "[m]ultifamily dwellings units: one space per studio unit, 1.5 spaces per one-bedroom unit, two spaces per unit with two or more bedrooms; plus one visitor space for every five units." The summary judgment record indicates that a number of units in the Project will be studio and one-bedroom units. Finding 8 of the Planning Board Decision allows for seventy-four residential condominium units and references "Sheet C4" which contains the unit count and number of bedrooms per unit. [Note 11] Finding 8 also states, "These counts determine the required number of parking spaces in determining conformance to zoning. No change may be allowed in the number of bedrooms without amendment of this Special Permit." The Planning Board Decision also addressed parking in Finding 11, which states,

The floor plans were reviewed for the purpose of determining the proposed bedroom and unit types for compliance with § 145.61.11.C of the Zoning Code and the number of off-street parking spaces. [Note 12]

Finally, Finding 12 of the Planning Board Decision states, "[t]he onsite parking is to include 128 parking spaces."

A reasonable reading of these three provisions of the Planning Board Decision is that Sheet C4, filed with and relied upon by the Planning Board, contained the number of units and the number of bedrooms per unit for the Project. The Planning Board considered this unit count in determining the number of parking spaces required in accordance with the Bylaw. In both Finding 8 and Finding 11, the Planning Board Decision expressly references that all parking is to be in conformity with the zoning requirements of the Bylaw. Moreover, Finding 11 expressly references that the floor plans were reviewed to conform with the required number of parking spaces as required by § 145.61.11C, the provision of the Bylaw which indicates the parking requirements for multifamily dwellings such as the Project. Finally, the Planning Board Decision states that the Planning Board has determined that the Project is in compliance with the Bylaw, and that the Project is contingent upon such compliance for any further revisions to the plans for the Project required by stated conditions in the Planning Board Decision. [Note 13] It thus appears that the Planning Board took into consideration the unit count and number of bedrooms per unit and then concluded that 128 on-site parking spaces would be sufficient to provide the Project with full compliance under the Bylaw. Thus, since the Planning Board Decision is contingent upon compliance with the Bylaw, it cannot be said that there will be a loss of "some public parking spaces."

Philip's second contention is that the proposed parking area in the front yard of Locus does not conform with § 17.48.110.G of the Bylaw which states,

No off-street parking shall be located between the front facade of the building and the property line, except that the planning board may waive this requirement for an existing parking lot serving a building reuse project.

The parking area about which Philip complains falls squarely within the waiver provision contained in the Bylaw. This area is currently used as a parking lot and will serve a building reuse project, i.e. the Project. The Planning Board had the authority to waive the requirement that there be no parking located in the front of the building, and as such the on-site parking will not be impacted.

Finally, Philip complains about tandem parking which is barred by § 17.20.050.C which states, Parking facilities shall be designed so that each motor vehicle may proceed to and from the parking space provided for it without requiring the moving of any other motor vehicle. The board of appeals, however, may by special permit modify this requirement and the dimensional requirements of subsection B of this section where a parking facility is under full-time attendant supervision.

Finding 16 of the Planning Board Decision states "[t]he onsite parking will include eight (8) stacked parking spaces of which four are located directly behind the four other spaces with only one set providing direct driveway access," i.e. the Planning Board Decision provides for tandem parking. The Bylaw, however, affords the Planning Board discretion to allow for tandem parking by special permit, which the Planning Board has done. The Planning Board Decision addresses this issue by deed restricting the tandem parking spaces. The tandem parking spaces will be "deed restricted to four ... units in the proposed project which require two parking spaces each, so that the owners of those units may provide full-time supervision of these spaces" in order to satisf[y] the requirement of "full-time attendant supervision" as required by the Bylaw. [Note 14] Moreover, the Planning Board is afforded discretion to interpret and apply its own Bylaws as it deems appropriate. Livoli v. Zoning Bd. of Appeals of Southborough, 22 Mass. App. Ct. 473 , 479 (1986) ("[a] reasonable interpretation of its own zoning bylaw by a local board ... is entitled to deference"). Thus, the deed restriction in Finding 16 of the Planning Board Decision will not exacerbate any issue of on-street parking. [Note 15]

As a result of the foregoing, I find that Philip's speculative "fear and belief" of decreased on-street public parking is insufficient to confer standing.

Philip also cites general traffic concerns as a personal harm, stating that "traffic congestion is common." [Note 16] His Affidavit gives no specified personal harms relative to the traffic concern or how the Project will affect such concern, only that he "fears and believes" that the Project will cause increased traffic. [Note 17] Moreover, there was certainly nothing precluding Philip from hiring an expert to perform a traffic study. Had this been done, and had his expert been able to determine that the Project would cause an increase in traffic compared to the traffic congestion both in recent years and during Locus' prior use as a hospital, there may have been a basis for standing. As a result, I find that Philip's fear and speculation of increased traffic, without more, is insufficient to confer standing.

Philip also states a generalized and speculative fear of safety issues from the Project resulting from alleged insufficient water flow and pressure related to fire suppression, and insufficient capacity to furnish sewer service, again without giving any supporting facts. He cites no credible evidence, but instead relies on speculation based on the Planning Board Decision. [Note 18]

Moreover, Philip does not show any particularized harms in this regard. As with the traffic issue discussed, supra, there was nothing precluding Philip from hiring an expert to perform testing relative to his infrastructure concerns. Had Philip hired an expert to complete such testing, and had that expert concluded that the water pressure and sewer capacity of the Project would detrimentally effect Philip, that might have been sufficient to confer standing. [Note 19] As a result of the foregoing I find that Philip's speculative "fear and belief" of insufficient water pressure for fire suppression and insufficient sewer capacity do not confer standing.

In his deposition, Philip further argues that increased density in the neighborhood, resulting in diminution in property values, is a recognized harm. Philip, however, does not provide any information, other than speculative fears, as to the diminution of property value or how these concerns would be impacted by the Project. Philip's general fears and beliefs are "just the type of 'uncorroborated speculations' sought to be avoided by the standing requirements of to G. L. c. 40A, § 17." Marashlian, 421 Mass. at 723. Thus, I find that Philip's fear and belief that the Project will cause a diminution in his property value are insufficient to confer standing.

As a result, I find that Philip does not have standing to challenge the Planning Board Decision.

Edward and Jean.

Edward and Jean both allege harms in their affidavits and depositions. Edward and Jean, through separate affidavits, cite increased traffic, decreased parking availability, and infrastructure (insufficient water flow and pressure for fire suppression, and insufficient capacity to furnish sewer service) as concerns. For the same reasons as stated, supra, for Philip (principally because parking would be on-site for the Project), parking does not appear to be an issue. Moreover, neither Edward nor Jean state in their Affidavits that they park on Lincoln Street, even if decreased on-street parking were an issue, in order to show that they would be harmed by the Special Permit. As a result, I find that Edward and Jean's concerns regarding increased on-street public parking do not confer standing.

Both Edward and Jean state a generalized fear of increased traffic, and state that "it is often difficult for [us] to drive [our] car out of [our] driveway because of the traffic on Lincoln Street." This allegation is based on present and past use of Locus and is speculative as to the traffic that will be generated by the Project. There is no evidence of how the Project will impact traffic. [Note 20] As discussed, supra, for Philip, there was nothing preventing Edward and Jean from hiring a traffic expert and submitting the expert's report into evidence. Thus, I find that Edward's and Jean's speculations as to increased traffic do not confer standing.

Edward and Jean also state generalized fears and speculation as to insufficient water flow and pressure related to fire suppression, and insufficient capacity to furnish sewer service, based on the Planning Board Decision. As discussed, supra, for Philip, these fears are speculative, not personal to Edward and Jean, and are not supported by facts. As a result of the foregoing I find that Edward's and Jean's speculative "fear and belief" of insufficient water pressure for fire suppression and insufficient sewer capacity do not confer standing.

In their depositions, both Edward and Jean state that density of the Project is an issue, but they give no facts to justify this concern. In addition, in his deposition, Edward states that increased density in the neighborhood would result in diminution in property values. Edward and Jean, however, do not provide any information, other than speculative fears, of any figures relative to diminution in property value, or as to how these concerns would be impacted by the Project. Thus, I find that Edward's and Jean's speculations as to diminution in the value of their property do not confer standing.

As a result, I find that Edward and Jean do not have standing to challenge the Planning Board Decision.

Based on the foregoing, I ALLOW the Trust's Motion for Summary Judgment. [Note 21] Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: January 19, 2011