ANTRANIG MANASIAN, TRUSTEE OF 1843 REALTY TRUST [Note 1] vs. THE TOWN OF FALMOUTH and MATTHEW J. MCNAMARA, DENNIS MURPHY, PATRICIA FAVULLI, RONALD H. ERICKSON AND KENNETH H. FOREMAN, as they constitute the FALMOUTH ZONING BOARD OF APPEALS, and MARIGOULA TROUBALOS

Plaintiff Antranig Minasian (“Minasian”), as Trustee of 1843 Realty Trust, filed an unverified Complaint of February 19, 2010, pursuant to G.L. c. 40A, §17, appealing a decision of Defendant Zoning Board of Appeals of the Town of Falmouth (the “ZBA”), which granted a variance to Defendant Marigoula Troubalos (“Troubalos”) (together, “Defendants”) for the construction of a single family home with less then required front yard setback. A case management conference was held on April 26, 2010. Troubalos filed his Motion for Summary Judgment on June 30, 2011, together with supporting memorandum, Statement of Material Facts, and Appendix containing Affidavits of John P. Doyle and Michael J. Markoff, Esq. On July 1, 2011, Plaintiff filed his Motion for Summary Judgment, together with supporting memorandum, Statement of Facts, and Appendix containing the Affidavits of Antranig Minasian, Douglas C. Azarian, and Jack K. Merrill, Esq. On July 28, 2011, Troubalos filed his Opposition, together with a Statement of Additional Material Facts, and Supplemental Appendix containing the Affidavits of Rita Klapes and John Corrway. On July 28, 2011, Plaintiff filed his Opposition. A summary judgment hearing was held on August 1, 2011, at which time this 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. Troubalos owns property located at 0 Nathan S. Ellis Highway in Falmouth, Massachusetts (“Lot 2”). Lot 2 is zoned Residential B, and has a rectangular shape.

2. Plaintiff owns property located at 28 Nathan S. Ellis Highway in Falmouth, Massachusetts (“Lot 1”), which directly abuts Lot 2 on Lot 1’s western boundary.

3. On or about May 14, 1923, Mary A. Nye, then owner of Lot 2, granted an easement (the “Easement”) to the Cape and Vineyard Co. and its assigns for the right to “erect, maintain, and renew its poles, wires and fixtures in, over and across” her property. She also granted to the utility company “the right to clear and keep clear of trees and bushes a space at least 33 feet wide on each side of the Company’s pole line.”

4. By a deed dated October 20, 1980, recorded in the Barnstable County Registry of Deeds (the “Registry”) in Book 3178, at Page 1, John L. Kowalski took title to Lot 2. This deed states that Lot 2 is burdened by the Easement.

5. By a deed from John L Kowalski, dated October 23, 1980, Troubalos and her husband took title to Lot 2. The deed provided that the “conveyance is made subject to all easements of record, insofar as the same are in force and applicable.”

6. In 1980, the zoning bylaw of the Town of Falmouth (the “Bylaw”) required a front yard setback of thirty-five feet. In April 1986, the front yard setback requirement was increased to seventy-five feet.

7. In Article 64 of the 1986 Bylaw, an explanation of the seventy-five foot setback requirement is provided as follows:

The Planning Board has established 10 goals and objectives to maintain Route 151 as a major transportation corridor that will provide safe and scenic travel. This seventy-five (75’) foot setback requirement from the Route 151 layout will ensure that the Town can meet two of those goals; allowance for possible future expansion of the highway and maintenance of a vegetated buffer. This setback requirement is only a first step, but is an important step towards a comprehensive plan for the highway.

8. By decision dated September 1, 2000, the ZBA granted a setback variance to Michael Shanahan, which allowed the construction of a single family residence on Lot 1 within sixty-five feet of Nathan S. Ellis Highway. This variance was based on the finding that the shape of Lot 1 resulting from the Easement constituted a hardship since Lot 1 could not be built upon without a variance.

9. By a deed dated October 6, 2006, and recorded in the Registry in Book 21413, Page 244, Michael Shanahan conveyed Lot 1 to Plaintiff.

10. On December 9, 2009, Troubalos applied to the ZBA for a variance from the seventy-five foot front yard setback requirement as required by §240-68A of the Bylaw. Troubalos is requesting a front yard setback of forty-two feet.

11. Plaintiff received notice and appeared at a public hearing on January 21, 2010, at which the variance application was discussed.

12. By decision dated January 21, 2010, and filed with the Falmouth Town Clerk the same day, the ZBA granted Troubalos the variance (the “Variance”).

13. The ZBA decision was based on the following findings:

a. there exists no soil condition relevant to the variance application;

b. there exists no topography issue relevant to the variance application;

c. the Locus contains an electric company easement, "which cannot be built on," and a "pole," and therefore "does meet the criteria that the shape of the property is burdened by the easement and structure contained within it."

14. Plaintiff filed a copy of the Complaint with the Town Clerk, together with a copy of the cover letter addressed to the Land Court which stated that the filing fee was enclosed, within twenty days after the Variance was filed with the Town Clerk.

15. Douglas Azarian (“Azarian”), a real estate agent in Falmouth for 25 years, testified by affidavit for Plaintiff that a small house constructed on Lot 2 close to Nathan Ellis Highway would negatively impact the value of Lot 1 because “as a general rule in real estate – properties of low value bring down values in their neighborhoods – particularly abutting properties.” He also testified that the Variance would impede the view both from Lot 1 and to it.

16. John Corrway (“Corrway”), a licensed real estate broker, testified by affidavit for Troubalos that “it is my opinion that a home on [Lot 2] would be a big improvement to the abutting properties and the neighborhood as a whole…[t]he placement of the house on the lot should have no impact on the Manasian property[,] and it is my opinion that it will have no impact on the value of that property.” He further testified “[t]he setbacks as noted on the plan are consistent with many homes within the [T]own of Falmouth and in my opinion will not in any way affect the value of Mr. Manasian’s property.”

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Troubalos argues that this court has no jurisdiction over the present appeal because Plaintiff failed to give notice to the town clerk that an action had been filed within the 20-day period set forth in M.G.L. c. 40A, § 17, that Plaintiff has no standing, and that the Variance is valid. Plaintiff argues that this court does have jurisdiction over this appeal, that he has standing, and that the Variance is not valid. I shall address each of these issues in turn.

Jurisdiction over the Appeal

Troubalos argues that this court should dismiss Plaintiff’s claim for lack of subject matter jurisdiction because Plaintiff failed to provide notice that this action had been filed to the Clerk of the Town of Falmouth within the 20-day period mandated by M.G.L. c. 40A, § 17. [Note 2] Plaintiff submitted to the Town Clerk, within the mandatary 20-day period, a copy of the Complaint (without a docket number) and a copy of a letter to this court filing the Complaint and enclosing the filing fee. These materials provided sufficient notice to the Town Clerk that an action had been filed, and satisfy Plaintiff’s requirements under G.L. c. 40A § 17. See also McLaughlin v. Rockland Zoning Board of Appeals, 351 Mass. 678 (1967). As a result, I find that this court has subject matter jurisdiction over the Complaint.

Standing

Plaintiff must have standing to appeal the grant of the Variance. G.L. c. 40A, §17, states that “[a]ny person aggrieved by a decision of the board of appeals of any special permit granting authority...may appeal [the decision] to the land court department.” All persons who qualify as "parties in interest" under G.L. c. 40A, § 11, are entitled to a presumption of standing as an aggrieved party. See Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 257 (2003).

A defendant may challenge the presumption of standing by bringing additional evidence “warranting a finding contrary to the presumed fact.” See Watros v. Greater Lynn Mental Health and Retardation Ass’n, Inc., 421 Mass. 106 , 111 (1995). If the presumption of standing is properly challenged, the burden rests with the plaintiff to prove standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest. See Shriners' Hosp. for Crippled Children v. Boston Redevelopment Authy., 4 Mass. App. Ct. 551 , 555 (1976); Prudential Ins. Co. of America v. Board of Appeals of Westwood, 18 Mass. App. Ct. 632 , 633 (1984). The plaintiff must establish that his injury is of a type that the pertinent zoning provisions are intended to protect against, and is special and different from the concerns of the rest of the community. Standerwick v. Andover Zoning Board of Appeals, 447 Mass. 20 , 33; Barvenik v. Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992).

Devaluation of property value or other stand-alone economic harms are not sufficient to confer standing on a plaintiff. Standerwick, 447 Mass. at 31-32. A plaintiff must relate such a claim to a cognizable, individualized, harm.

A claim of diminution of property values must be derivative of or related to cognizable interests protected by the applicable zoning scheme....To untether a claimed diminution in real estate values from an interest the zoning scheme seeks to protect would permit any abutter who claims that any change in property use would diminish the value of property to obtain standing to challenge a zoning decision.

Id. (internal citations omitted). Such a protected interest can arise from a by-law’s express language or implicitly from the intent of the by-laws provisions. Marhefka v. Zoning Board of Appeals of Sutton, 79 Mass. App. Ct. 515 , 518 (2011); see, e.g., Monks v. Zoning Board of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994) (by-law expressly protected “visual character or quality of the neighborhood”); Sheppard v. Zoning Board of Appeal of Boston, 74 Mass. App. Ct. 8 , 12 (2009) (“The requirements regarding lot size, lot width, and side yard are intended to further [the general purposes of the by-law]”).

A review of standing for summary judgement does not require that the fact finder ultimately find a plaintiff’s allegations meritorious, so long as the plaintiff has put forth credible evidence to substantiate his allegations. Kenner vs. Chatham Zoning Board of Appeals, 459 Mass. 115 , 119 (2011). The plaintiff must show that the adverse affects are substantial enough to constitute actual aggrievement such that the plaintiff should be afforded the opportunity to seek a remedy. Id. at 122.

Applying these principles to the case at bar, Plaintiff is presumed to have standing as an “aggrieved person” because he is a direct abutter to Lot 2. Watros, 421 Mass. at 111. Plaintiff also claims standing based on a devaluation of Lot 1 caused by a small house on Lot 2 close to the road and the impact of such house on the view both to and from the house on Lot 1. Troubalos properly challenged Plaintiff’s presumption of standing by submitting into evidence an affidavit of Corrway, who is a licensed real estate broker, stating that the granting of the Variance will not have a negative effect on Plaintiff’s property value. In his affidavit, Corrway indicates that “[t]he placement of the house on the lot should have no impact on the Minasian property[,] and it is my opinion that it will have no impact on the value of that property.” He states “[t]he setbacks as noted on the plan are consistent with many homes within the town of Falmouth and in my opinion will not in any way affect the value of Mr. Minasian’s property.”

The Corrway Affidavit is sufficient to shift the burden of proof to Plaintiff because it impacts the likelihood that Plaintiff will be able to prove that he will suffer a particularized injury or harm as a result of the construction of a single family home on Lot 2. As a result, Plaintiff must show that the harm he claims is of a type that the Bylaw is intended to protect, and is special and individual to him.

Property devaluation due to an obstructed view of the property to and from the road is sufficient to confer standing only if the Bylaw imparted protection for such an interest, as required by Standerwick, and if the harm resulting from a violation of such interest is unique to Plaintiff. 447 Mass. at 31-32. Although the Bylaw makes no explicit mention of protection of a view from a structure, or the view of a structure from the road or other vantage point, view may be implicitly covered by the Bylaw. [Note 3] The 1986 amendment to the Bylaw creating the seventy-five foot front-yard setback stated that it was intended to maintain “Route 151 as a major transportation corridor that will provide safe and scenic travel. This seventy-five (75') foot setback requirement from the Route 151 layout will ensure that the Town can meet two of those goals; allowance for possible future expansion of the highway and maintenance of a vegetated buffer.”

One of the Bylaw’s stated intentions in maintaining the seventy-five foot front yard setback was maintenance of a vegetated buffer. The Bylaw’s presumed intention in maintaining the seventy-five foot front yard setback as a vegetated buffer was to allow travelers on the road to have an unimpeded landscape along the road, which would include structures along the road with an unimpeded front lawn. The construction of a structure less then seventy-five feet from the road is prohibited by the Bylaw because it was seen as a detriment to both the safety and scenery of the road. It appears that the benefit of a safe and scenic passage along Route 151 is conferred on those traveling on the road as well as those who own property along the road. Plaintiff stated in his affidavit that he relied on the unobstructed view of his house on Lot 1 and the open landscape in investing in Lot 1 for use as a commercial rental property. As a result, I find that Plaintiff’s alleged harm is a cognizable harm protected by the Bylaw. [Note 4]

Plaintiff has not, however, shown that this harm is particularized to him. In order for the harm to be particularized to Plaintiff, he must show that the harm is specific to his property and not all properties on Route 151. Both sides have presented conflicting expert affidavits (Azarian, Corrway) on the question of whether or not the construction of a house on Lot 2 in violation of the seventy-five foot front yard setback will result in the devaluation of Lot 1, or whether the lack of maintenance of a vegetated buffer impacts Plaintiff at all. There is therefore a question of fact supported by conflicting expert testimony as to whether Plaintiff has standing to challenge the Variance. Summary Judgement is therefore not appropriate and a trial must be held.

The parties shall attend a status conference on Tuesday, December 27, 2011, at 10:00 AM to discuss the status of litigation of this matter. Judgment shall enter after a final resolution of the issues in this case.

Alexander H. Sands, III

Justice