MISC 09-417952

July 29, 2011


Grossman, J.


The instant action presents a challenge to a decision of the City of Brockton Zoning Board of Appeals (Board). At a November 10, 2009 meeting, the Board granted a variance for the residential property at 280 Sully Road, Brockton, Mass. ( Locus / Premises). The variance allowed defendant All Around Care At Home, LLC (defendant / All Around Care) to maintain and operate a 24-hour elderly care facility at a dwelling located in a single-family residential zone. Ten plaintiffs, [Note 1] who own property or reside in close proximity to Locus initially opposed the grant of the variance and, subsequent to its issuance, initiated this action on a pro se basis against the Board and All Around Care.

All Around Care filed a motion for summary judgment alleging that the plaintiffs lack standing to proceed. The plaintiffs responded by filing an opposition to that motion and a cross-motion for summary judgment. On September 22, 2010, the plaintiffs filed an affidavit of William D. Carlson (Carlson), a purported traffic expert in support of their cross-motion. Defendants renewed their opposition to the cross-motion and moved to strike Carlson's affidavit. [Note 2] All motions were heard and taken under advisement. Upon consideration of the parties' oral arguments as well as their submissions including memoranda and affidavits, this court will deny the defendant's Motion to Strike but will allow its Motion for Summary Judgment. Plaintiffs' Cross-Motion will be denied.

1. Presumption of Standing

G.L. c. 40A, § 17 provides in relevant part that "[a]ny person aggrieved by a decision of the board of appeals . . . may appeal to the land court department . . . by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk." Certain "parties in interest," as defined under G.L. c. 40A, § 11, are entitled to a presumption of standing as "persons aggrieved," including (1) abutters, (2) property owners directly opposite the locus (i.e., directly across the street from), and (3) abutters to abutters within three hundred feet of the property line of the Locus. "[T]hose entitled to notice of the proceedings are presumed to have the requisite interest" under G.L. c. 40A and thus enjoy a rebuttable presumption that they are "persons aggrieved." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006).

In their amended complaint, the plaintiffs describe themselves as abutters or "adjacent abutters." [Note 3] Additionally, they have filed Affidavits "in Support of Cross motion of Plaintiffs for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment..." in which they assert, inter alia, that they are abutters to Locus. [Note 4] The Affidavits set forth the respective addresses of each plaintiff as follows: Joseph Graham and Virginia Kipp (Graham) reside at 275 Sully Road; Bennett Blot and Claudette Blot reside at 271 Sully Road; Richard Dube resides at and owns 266 Sully Road. James Lawless and Linda Lawless reside at and own 267 Sully Road; Debra Ricci resides at 287 Sully Road; Robert Nihtila and Diane Nihtila own 287 Sully Road. Notwithstanding their signatures under oath that they are "entitled to notice of zoning board of appeals hearing and enjoy a rebuttable presumption as 'persons aggrieved' the plaintiffs have provided no specific documentation which demonstrates presumptive standing. See Marashlian v. Bd. of Appeal of Boston, 421 Mass. 719 , 721 (1996).

For its part, All Around Care has not explicitly conceded that the plaintiffs are "parties in interest." However, it appears to have assumed as much, at least for purposes of the dispositive motions at bar. Thus, in its Supporting Brief, All Around Care argues as follows:

Even assuming they are abutters, however, their presumptive standing has been rebutted by the submissions of All Around in support of the present motion, particularly including the answers to interrogatories by the Plaintiffs.

In view of the foregoing, this court will assume for the limited purposes of this Motion, that the plaintiffs enjoy the presumption of standing.

2. Standing

The primary argument advanced by the plaintiffs, in both their supporting Affidavits and responses to interrogatories, centers upon a claim of increased traffic resulting from the operation of the elder care facility at Locus, as well as the attendant problems or "injuries" that would result therefrom. The plaintiffs allege that there will be a traffic increase attributable, inter alia, to the residents themselves, their visiting family members and friends, vendors, and resident caregivers.

The plaintiffs allege further, that the purported traffic increase will exacerbate already existing conditions, including (a) property damage and physical safety concerns for the children, due to a greater number of vehicles driving through a neighborhood having no sidewalks or curbs; (b) hazardous traffic and on-street parking, as well as traffic congestion as Sully Road. (In this latter regard, Sully Road is apparently used by many as a cut-through to a nearby school and other areas); (c) difficulty for certain of the abutters exiting their driveways, due to anticipated increased on-street parking.

The plaintiffs also allege other forms of aggrievement that are not at all cognizable harms. Thus, in their Affidavits, the plaintiffs speak of the elimination of an opportunity for a single family with children to occupy Locus. They decry the Board's decision inasmuch as it will allow the defendant to establish other such facilities "in the residential district." So too, it will, they allege, permanently change the zoning scheme. This court possesses fairly broad discretion to determine what subject matter requires expert evidence. See Standerwick, 447 Mass. at 36 (affirming trial judge's determination that expert evidence was necessary to show substantial likelihood of increased crime and vandalism attributable to c. 40B development), citing Barvenik, 33 Mass. App. Ct. at 137 n. 13. Here, this court concludes that expert knowledge and skill are required if one is to properly evaluate the impact of an alleged prospective increase in traffic and parking, as well as safety concerns of the sort alleged by the plaintiffs. The summary judgment record is devoid of any indication that the plaintiffs themselves possess such expert knowledge or skill.

Typically, this court would require expert evidence on such matters, because these topics are generally "beyond the scope of the common knowledge, experience or understanding of the trier of fact without expert assistance." Barvenik, 33 Mass. App. Ct. at 138 n. 13 (stated in upholding trial judge's determination that expert evidence required on issue of traffic-based aggrievement). Nothing in the plaintiffs' presentation would warrant a deviation from this general principle. [Note 5] Accordingly, plaintiffs' conclusory and speculative statements on the issues of traffic, parking and safety do not constitute competent evidence because they are unsupported by any factual underpinning, but more importantly, they bear on an issue outside the realm of common knowledge.

To support their claim for standing due to increased traffic and the attendant harms, apart from their own statements, the plaintiffs submitted an Affidavit of traffic expert William D. Carlson. In his affidavit, Carlson made a number of significant, yet fairly unsubstantiated claims. For example, he concluded that the proposed facility would generate seven more vehicle trips per day than a single family residence, thus increasing daily traffic 70% over the existing use. [Note 6]

He concluded his Affidavit with the following:

My conclusion is that the proposed project will significantly increase daily traffic (70%) over the existing use and will have deleterious impacts on the Sully Road residential neighborhood with regard to traffic, safety and parking.

While the harms or aggrievements recited by the plaintiffs themselves do not rise beyond the level of hypothesis, opinion or speculation, the "expert" conclusions with regard to traffic, safety and parking, stand in a different light.

3.Analysis of Standing

A "person aggrieved" within the meaning of c. 40A is one who "suffers some infringement of his legal rights." Kenner v. Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011), quoting Marashlian, 421 Mass. at 721. To establish such "aggrievement," a party must assert "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest." Harvard Square Def. Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). Moreover, to confer standing, the alleged injury must be to "a specific interest that the applicable zoning statute, ordinance, or bylaw at issues is intended to protect." Standerwick, 447 Mass. at 30.

In its recent Kenner decision, the Supreme Judicial Court set forth, in some detail, the requirements for "aggrievement":

Aggrievement 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 . . . . [T]he 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.

459 Mass. at 121-22 (emphasis added). See also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440-41 (2005). "[A] plaintiff is not required to prove by a preponderance of the evidence that his or her claims of particularized or special injury are true." Id. at 441. Instead, a plaintiff must only "put forth credible evidence to substantiate his allegations." Id., quoting Marashalian, 421 Mass. at 721. The credibility of such evidence is to be evaluated from both a quantitative and qualitative standpoint:

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 will flow from the board's action.

Butler, 63 Mass. App. Ct. at 441. Accordingly, "[c]onjecture, personal opinion, and hypothesis" are not to be considered "credible evidence." Id.

As noted above, certain "parties in interest" are entitled to a presumption of standing as "persons aggrieved." See Standerwick, 447 Mass. at 33. Nevertheless, a defendant may rebut such presumption by offering evidence "warranting a finding contrary to the presumed fact." Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). Defendants are not required to present affirmative evidence refuting the plaintiffs' claims, but merely need to demonstrate that the plaintiffs have "no reasonable expectation of proving" the alleged injury. See Standerwick, 447 Mass. at 35, quoting Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 716 (1991). Yet the courts have not delineated a clear formula for determining the exact amount and nature of evidence required to rebut a presumption of standing. See Standerwick, 447 Mass. at 33 n.18.

Assuming the plaintiffs are parties in interest, and thus entitled to a presumption of standing, the defendant must offer evidence to rebut the presumption that as a result of the variance, traffic in the area will increase, thereby harming the plaintiffs in the manner specified.

In propounding interrogatories and soliciting responses concerning the plaintiffs' purported aggrievement, this court is of the view, that any presumption of standing recedes.

Once the presumption has been rebutted, "the burden rests with the plaintiff to prove standing, which requires him to `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."' Standerwick, 447 Mass. at 33, quoting Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). Massachusetts courts have generally held adverse effects upon traffic as legitimate zoning-related concerns, and the Brockton Zoning Code lists "[l]essening congestion of traffic" as one of the purposes served by its zoning laws. City of Brockton Code app'x C, art. I, § 27-2(d); see Marashalian, 421 Mass. at 722; Barvenik, 33 Mass. App. Ct. at 133. However, any traffic-based injury must be more than speculative and must bear some nexus to the plaintiffs' use and enjoyment of his property; it is not enough merely to demonstrate an increase in area traffic levels. See Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 623 (1993); Barvenik, 33 Mass. App. Ct. at 136; Avin v. Bd. of Zoning Appeal of Cambridge, 8 LCR 339 , 341 (2000) (Misc. Case No. 263376) (Green, J.) (ruling "evidence at trial demonstrates only a general increase in traffic ... and not any particularized effects on any plaintiff's property").

As noted supra, this court is of the view that the plaintiffs' personal beliefs regarding the potential increase in traffic and attendant concerns due to the location of the proposed elderly care home would be considered "speculative personal opinion," at best, and as such, not the kind of "credible evidence" that would support a claim of standing. Standerwick, 447 Mass. at 33; Butler, 63 Mass. App. Ct. at 441. Therefore, the resolution of this standing dispute centers primarily upon the expert testimony offered by the plaintiffs and disputed by the defendants.

In his Affidavit, Carlson avers that:

(1) A single-family residence generates, on average, 10 vehicle trips per day. The facility at 280 Sully Road would generate at least 17 vehicle trips per day - a 70% increase, apparently due solely to activities of the residents and caregivers alone. Additional trips by "vendors, healthcare providers, visitors, and maintenance and emergency vehicles" would add to that total. [Note 7]

(2) 280 Sully Road provides off street parking for 3-4 vehicles. Because patients may need to store their own cars, [Note 8] and the caretakers need to park as well, at least 5 off street spaces would be required, necessitating frequent on street parking. [Note 9]

(3)Increased traffic and on-street parking due to the operation of the facility will create "serious safety conflicts" along Sully Road and potential damage to plaintiffs' properties. [Note 10]

As the defendants point out, there is a dearth of substantive data or other information with which to evaluate the accuracy and reliability of Carison's conclusions.

More telling however, is the deposition taken of Mr. Carlson on November 10, 2010.

The following exchanges between defendant's counsel and Mr. Carlson are most relevant:

Q: So your opinion is that extra trips a day, 10 versus 17, [Note 11] is not significant.

A: As far as traffic flow goes. As far as safety goes it could be significant....

Q: And your testimony is that as far as traffic is concerned 17 trips a day is not a significant difference in this residential zone

A: Correct, as far as traffic flow goes. Safety, I'll leave up to you.

Q: Safety you have no idea.

A: More traffic, safety decreases.

Q: But you're not an expert in that area.

A: Correct.

Thereafter, Carlson offered the following:

A: All right, I'll just talk numbers. The numbers increase is 70 percent... which will not affect traffic flow.

Thus, notwithstanding Mr. Carison's stated conclusion in his Affidavit of September 17, 2010, he subsequently testified at his deposition that, even using his "numbers," traffic flow would not be affected by the prospective use of Locus. Moreover, he was not, by his own admission, qualified to opine on safety related matters.

Accordingly, on the basis of the evidence presented, this court concludes that the plaintiffs have not demonstrated that they will suffer injury or harm as a consequence of the Board's action. For the purposes of summary judgment, the court is satisfied that the plaintiffs have not "put forth credible evidence to substantiate [their] allegations." Butler, 63 Mass. App. Ct. 441 , quoting Marashalian, 421 Mass. at 721. The evidence provided including the plaintiffs' personal opinions [Note 12] and Carlson's Affidavit, does not warrant a conclusion that " the claimed injury [or injuries] will flow from the board's action." Butler, 63 Mass. App. Ct. at 441.


Based upon the foregoing analysis, this court finds that the plaintiffs have suffered no legally cognizable aggrievement as a result of the Board's decision. Accordingly, as the plaintiffs lack standing, this court is without the requisite subject matter jurisdiction. It may not therefore, reach the merits of plaintiffs' appeal. Accordingly, it is hereby

ORDERED that Defendant's Motion to Strike be, and hereby is, DENIED.

ORDERED that Defendants' Motion for Summary Judgment be, and hereby is, ALLOWED, and it is further

ORDERED that Plaintiffs' Cross-Motion for Summary Judgment be, and hereby is, DENIED.It is further

ORDERED that Plaintiffs' complaint be, and hereby is, DISMISSED.

Judgment to enter accordingly.



[Note 1] Robert Nihtila, Diane Nihtila, Debra Ricci, James Lawless, Linda Lawless, Richard Dube, Bennett Blot, Claudette Blot, Joseph Graham and Victoria Kipp (Graham), (plaintiffs).

[Note 2] In their Motion to Strike, the defendant alleges that Carlson's statements were speculative, unsubstantiated and misleading. See Def's. Mem. in Support of Mot. to Strike Aff'd of William D. Carlson (Sept. 30, 2010). They also alleged that the admittedly late filing of Carlson's affidavit was improper and was intended to prevent the defendants from adequately responding to the allegations set forth therein. Id.

[Note 3] Amended Complaint Pursuant to G.L. c. 40A, 17, at ¶ 1 (June 9, 2010).

[Note 4] In many respects the Affidavits, though somewhat individualized, are relatively uniform in their recitations. For example, virtually all recite as follows: We / I "fear for my family's safety due to the Board of appeals decision to allow a nursing home business at 280 Sully Road," in a "strictly residential zone." Notably, the facility in not a nursing home.

[Note 5] This court might be open to layperson testimony in this regard, if, for example, the development authorized by a special permit were truly massive in scale, so that an increase in traffic and decrease in area parking would be self-evident. See, e.g., Marashlian, supra (in which the private defendant wished to develop a large hotel in downtown Newburyport). This case does not present such facts.

[Note 6] See Aff'd of William D. Carlson, at p. 6.

[Note 7] Carlson Aff'd, at p. 5-6.

[Note 8] Per an Affidavit of Paul S. Dzialo (Dzialo), the defendant's manager, the residents at the 280 Sully Road facility are "frail elderly persons." They will be screened to assure that they are deficient in at least two activities of daily living such as dressing, walking, eating and bathing. Critically, he states that "since the residents do not drive, they will not be maintaining automobiles at the property."

[Note 9] Id. at p. 7. Note that Locus has as many as four off-street parking spaces.

[Note 10] See id. at 118.

[Note 11] According to Carlson, a single family residence would typically generate 10 trips per day, while this facility would generate 17 trips per day. Defendant's own expert disputes this latter figure, placing it at 11 trips per day.

[Note 12] Expressed in affidavits and responses to interrogatories.