MISC 09-399638

February 4, 2011

Sands, J.


Plaintiff Pauline Hardy (“Hardy”) filed her unverified Complaint on April 29, 2009, appealing, pursuant to G. L. c. 40A, §17, a decision (“ZBA Decision 4”) of Defendant Yarmouth Zoning Board of Appeals (the “ZBA”) which upheld a decision of the Yarmouth Building Inspector (the “Building Inspector”) to issue a building permit to Charles H. Sullivan and Penny A. Sullivan (the “Sullivans”) (with the ZBA, “Defendants”) to construct an eight unit cottage colony on property located at 330 Main Street (Route 6A), Yarmouth Port, MA (“Locus”). [Note 1] On July 2, 2009, the Sullivans filed a Motion to Intervene. A case management conference was held on July 10, 2009, at which time the Motion to Intervene was allowed. On the same day, the Sullivans filed a Motion to Dismiss, which by agreement of the parties was put on hold. A pre-trial conference was held on April 1, 2010. A site view and the trial at Barnstable District Court were held on July 22, 2010. At the trial the Sullivans filed a Motion in Limine to Bifurcate the Issues of Standing from that of the Merits of the Board’s Decision, which motion was denied by this court. At the completion of Plaintiffs’ case, the Sullivans filed an oral Motion to Dismiss, which was denied by this court. Defendants filed their Joint Report for Rulings of Law on August 23, 2010. Plaintiffs filed their Request for Finding of Fact on August 26, 2010, at which time the matter was taken under advisement.

Testimony for Plaintiffs was given by James Brandolini (Building Commissioner), Bruce Murphy (Yarmouth Director of Health), Terry Sylvia (Yarmouth Town Planner), Pauline Hardy (Plaintiff) and Kenneth Evans (Plaintiff); testimony for Defendants was given by Charles Sullivan (Defendant). There were sixteen exhibits submitted.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Locus contains 1.02 acres (44,851 square feet) and is shown as Parcel No. 1 on “Plan of Land in Yarmouthport, Mass. For Anthony Santospirito” dated August 28, 1952 and prepared by Chase, Kelly & Sweetser (the “1952 Plan”).

2. In 1972, Locus was in a RD-2 zoning district pursuant to the Town of Yarmouth Zoning Bylaw (the “Bylaw”). The RD-2 zoning district allowed one or two family dwellings and a minimum lot size per dwelling unit of 20,000 square feet. By decision dated April 4, 1972 (“ZBA Decision 1”), the ZBA granted the Yarmouth Port Village Store (prior owner of Locus) a variance (the “1972 Variance”) to “allow a change of a non-conforming use, remodeling of the Village Store, Yarmouthport, Mass. and change the cottage colony in the rear of the property.” [Note 2] ZBA Decision 1 stated “that there had been a store and cottages on the property prior to the adoption of zoning in the Town of Yarmouth [February 12, 1946]” and found that “the present use [nine rundown cottages and a large building known as the Village Store] is in fact a non-conforming use as provided for in the zoning by-law,” and “the proposed use will be no more detrimental to the area than the present use.” Hardy spoke in opposition to the 1972 Variance.

3. Hardy appealed the issuance of the 1972 Variance to the Barnstable District Court, and by stipulation of all parties, the court issued an Order dated June 23, 1972 (the “1972 Order”). [Note 3]

4. By decision dated August 10, 1972 (“ZBA Decision 2”), the ZBA adopted the 1972 Order. [Note 4] Hardy did not oppose the 1972 Order.

5. The Sullivans purchased Locus in 2004. In 2007 the Bylaw was amended and Locus was placed in a R40 zoning district. The R40 zoning district does not allow retail stores or cottage colonies; it also requires 40,000 square feet per single family house.

6. In 2007, the ZBA denied the Sullivans’ request to amend ZBA Decision 1 and ZBA Decision 2 to allow the construction of five year round homes in lieu of the eight seasonal cottages (“ZBA Decision 3”).

7. On January 12, 2009, the Building Inspector issued building permits to the Sullivans to construct eight cottages on Locus (the “Project”). At that time, Locus contained a retail store and the remnants of four of the original cottages.

8. Hardy appealed the decision of the Building Inspector to the ZBA. By decision dated April 23, 2009 (“ZBA Decision 4”), the ZBA voted to uphold the decision of the Building Inspector. [Note 5]

9. Hardy has owned and resided at 1 Belle of the West Road since 1958 and is an abutter to Locus. Evans has owned and resided at 9 Belle of the West Road since 2006 and is an abutter to an abutter within 300 feet of Locus. [Note 6]

10. There is a right of way (the “Right of Way”) running southerly from the intersection of Belle of the West and Red Jacket Road across Locus and out to State Highway Route 6A.


Prior to addressing standing of the Plaintiffs and the merits of the appeal of ZBA Decision 4, it must be determined whether Chalk A can be admitted into evidence. Defendants seek to introduce Chalk A, which is a three dimensional model depicting the proposed cottage colony. Chalk A appears similar to Exhibit 8, an agreed upon exhibit, which is a newspaper photograph of the proposed cottage colony. There is nothing in the record to indicate that Chalk A was used in the decision of either the District Court or the ZBA in 1972. Even if there was a model used during those proceedings, there is nothing in the record which proves that Chalk A was that model, and as such Chalk A has not been authenticated.

As a result, I find that Chalk A is not admitted into evidence.

Plaintiffs argue that they have standing to challenge ZBA Decision 4, and that ZBA Decision 4 was beyond the scope of authority of the ZBA because the 1972 Variance had lapsed. [Note 7] The Sullivans argue that Plaintiffs do not have standing, and that ZBA Decision 4 is a valid decision of the ZBA because the 1972 Variance is still valid. I shall examine each of these issues in turn.


“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 8] 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.

Hardy is a direct abutter to Locus and Evans is an abutter to an abutter within 300 feet of Locus. As such, both of Plaintiffs have presumed standing. The Sullivans must rebut the presumption of standing. They do this by relying on the fact that Plaintiffs have not presented any credible evidence of harms. See Standerwick, 447 Mass. at 35 - 36 (“[the developer’s] reliance on the plaintiffs’ lack of evidence as to the other claims, obtained through discovery, had equal force”). See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (defendants rebutted plaintiff’s presumption of standing where plaintiff’s deposition testimony “failed to show that the proposed project will impair any interests of the [plaintiff] that are protected by the zoning law”).

Hardy cites as harms diminution in value, lighting, noise, traffic and lack of parking, but she gives almost no credible evidence in this regard. With regards to diminution in value Hardy merely speculates that the value of her house would “go way down”. There is no appraisal report in the record nor any expert testimony which elaborates on these contentions, and as such there is no evidence in the record indicating that the value of Hardy’s property would be diminished because of the Project.

Hardy further speculates that the lights emanating from the cabins would shine on her property and be a nuisance. In her trial testimony Hardy states that at the time the ZBA voted on its approval there was no testimony given as to any lighting plan for the Project. As a result, Hardy is merely speculating that the Project will cause lights to shine on her property. Hardy further speculates that two of the cabins will be very close to the property line between her property and Locus. There is no evidence in the record, however, indicating where any of the new cabins will be located on Locus. [Note 9] Without any evidence to that effect, Hardy cannot rely on speculative concerns regarding nuisance lighting to confer standing upon herself.

Hardy is concerned that the addition of eight summer cabins will cause a great deal of noise which would be extremely bothersome and unbearable. Hardy relies on her past experience with a group of college students, who rented one of the cabins on Locus for a month in the summer of 1972. This one, isolated experience for a very short period of time more than thirty years ago does not convince this court that the project will cause any such similar nuisance. It is overly speculative to believe that because these “bad boys” (as referred to by counsel), who rented thirty years ago, were noisy, messy, and slammed doors that people who will rent the newly built cabins will cause a similar disturbance to proximate property owners. Further, Hardy speculates that two of the proposed cabins will be in close proximity to the boundary line and consequentially she will be bothered by a great deal of noise. As discussed, supra, there is no evidence indicating where the new cabins will be located. Moreover, this contention may be best summarized as the “Not In My Back Yard” defense. She states in her trial testimony, “It would be unbearable to live next door to a bunch of cabins right in your backyard practically.” Trial Transcript 90: 10-12, July 22, 2010. Hardy’s speculation that she will suffer from noisy neighbors are unfounded in evidence and as such are insufficient to confer standing. [Note 10]

Lastly, Hardy contends that the new development will cause an increase in traffic and decrease in available parking. Her primary concern is that persons occupying the cabins will park along the Right of Way, which would interfere with her use of the Right of Way. [Note 11] This concern is mere conjecture as there is no evidence in the record indicating where the cabin renters would park. [Note 12] Even if the cabin renters were to park along the Right of Way, Hardy testified that generally, she only walks along the Right of Way and uses another direct and safer access route out to Route 6A. As such her traffic and parking concerns are speculative and insufficient to confer standing. [Note 13]

As a result of the foregoing, I find that Hardy does not have standing to challenge ZBA Decision 4. Evans also cites as harms noise, lighting, runoff, parking, density and diminution of value, but he gives no credible evidence in these regards. As to noise, lighting, runoff, and density Evans merely mentions that these would be a problem, then goes no further. In fact, he did not attempt to give one shred of evidence on any of these harms, except for parking and diminution of property values. With regards to parking, Evans expressed concern that it is most likely the renters of the cabins who will park along the Right of Way. He cites that this would be dangerous to his visitors (including young grandchildren) and himself. As discussed, supra, there is no evidence in the record indicating that the renters will park along the Right of Way and to speculatively complain that this will be harmful is insufficient to confer standing (see supra, footnote 11).

With regards to diminution in value, Evans contends he has done a good deal of research and has concluded that comparable properties values, and his own property value, will be reduced because of the Project. [Note 14] There is nothing in the record, other than Evans’ speculative trial testimony, with regards to his claim of diminution in value. Evans was not qualified as an expert and his research and testimony into comparable sales values were inadequate and inaccurate. See Sheppard v. Zoning Bd. of Appeals of Boston, 74 Mass. App. Ct. 8 (2009) (plaintiff’s allegation of diminished value is insufficient in itself, notwithstanding plaintiff was a real estate broker). His entire testimony appears to be based on speculation at best, and as a result lacks credibility. [Note 15]

As a result, I find that Evans does not have standing to challenge ZBA Decision 4. As a result of the foregoing, I need not address the validity of ZBA Decision 4, and such decision stands. [Note 16]

Judgment to enter accordingly.

Alexander H. Sands, III


Dated: February 4, 2011


[Note 1] Hardy filed an Amended Complaint on May 15, 2009, naming Kenneth M. Evans (“Evans”) (together with Hardy, “Plaintiffs”) as a Plaintiff.

[Note 2] ZBA Decision 1 states that the change involved a reduction in the number of cottages from nine to eight and the remodeling of the cottages. There appears to me some discrepancy in the trial record as to the number of pre-existing cottages. See infra, footnote 3.

[Note 3] The 1972 Order stated that “[t]he extension of the present store building shall be used solely for the expansion of the present business of the petitioner and only for the same purposes as the present store is presently used . . . The eight (8) new cottages which the Board would allow in replacement of the seven (7) existing cottages, shall be used only for seasonal occupancy, which shall, for the purposes of this decision, mean the period from the 15th day of May to the 1st day of October; provided, however, that the two (2) proposed cottages to be located nearest Route 6A, may be occupied on a limited year round basis.”

[Note 4] The 1972 Variance remained in effect except as modified by ZBA Decision 2.

[Note 5] The vote was 3-2 to overturn the Building Inspector and revoke the building permit, but a vote of all but one member was required. As a result, the Motion to Overturn the Decision of the Building Commission failed.

[Note 6] Evans’ parents purchased this property in 1983, and Evans visited there several times a year until he bought the property from his parents in 2006.

[Note 7] Plaintiffs do not challenge the initial validity of the 1972 Variance.

[Note 8] 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 . . . .” An assessors’ certification is conclusive for establishing proof of a party in interest. Id.

[Note 9] There is a newspaper photograph in evidence which shows ten cottages (even though only eight were approved) but with no scale. The newspaper photograph is almost forty years old. Moreover, the site view confirmed that the lot is wooded, which is not reflected in the photograph. There is no trial evidence indicating where the eight cottages would be located and no trial evidence as to the location of Hardy’s house in relation to the cottages. Moreover, there is no evidence given relative to the deflection of light as a result of the cabins being on a wooded lot.

[Note 10] See discussion, supra, and footnote 9.

[Note 11] The trial record does not disclose any evidence as to either Hardy’s or Evans’ rights to use the Right of Way. Her testimony reflects that the Right of Way is a short cut on which she sometimes walks.

[Note 12] Exhibit 11, The Formal Site Plan Review Comment Sheet, dated September 23, 2008, states “The parking demand for the residential use and the proposed lot coverage comply with current provisions of Zoning bylaw Section 301.5 and 301.4.2.” Even though this is not a formal condition in the 1972 Variance or the 1972 Order it is persuasive evidence that Defendants have given due regard to parking considerations and compliance with the Bylaw.

[Note 13] Hardy’s testimony can be summed up by the following statement:

And to think that we should have to live beside eight cabins that are going to be noisy and doors slamming, lights going on, people running around in a quiet residential area is just unthinkable. Trial Transcript 90: 12 - 15, July 22 2010.

[Note 14] Evans testimony can be summed up by the following statement:

Q. It would be fair to say that your opinion of financial harm is predicated upon your deductive reasoning that if these eight cottages are built that were permitted in 1972, I must lose value on my property. Is that it?

A. Yes. Absolutely. Trial Transcript 125: 9-14, July 22, 2010.

[Note 15] Evans, as a retired attorney, testified that he was not aware of any of the variances because he had never done a title search of his property or any abutting properties.

[Note 16] It should be noted that even if Plaintiffs had standing, there is an issue as to whether they would prevail in overturning ZBA Decision 4. The construction of eight cottages was allowed in 1972, and there is no evidence that the owners of Locus abandoned the use of Locus for such purposes. In 1972, there was no time frame for the exercise of a variance. When such change was made to the statute which became effective in Yarmouth in 1975, it is questionable whether the change was made retroactive. See Hogan v. Hayes, 19 Mass. App. Ct. 399 , 403-404 (1985) (discussing factors relevant to the retroactivity issue). But more importantly, the terms of the 1972 Variance were incorporated into a court order (the 1972 Order). Moreover, Hardy approved the 1972 Order and is now seeking to rescind her approval of the 1972 Order and the Variance after already having endorsed them.