MISC 10-433457

December 5, 2011

Sands, J.


Plaintiffs, Maria ("Maria") and Alvaro DaRosa, filed their unverified complaint on July 6, 2010, appealing the decision of Defendant, Taunton Zoning Board of Appeals (the "ZBA"), pursuant to G. L. c. 40A § 17, that granted a sideline setback variance (the "Variance") to Defendants Daniel and Rose Baptista (the "Baptistas") (together with the ZBA, "Defendants") to build a garage/living addition (the "Addition") on the south side of their house at 1219 Bay Street, in Taunton Massachusetts. The parties filed a Joint Pre-Trial Memorandum on March 18, 2011, which was supplemented by Plaintiffs on June 22, 2011. A pre-trial conference was held on March 21, 2011. On July 26, 2011 a site view of the Baptistas' house and Plaintiffs' abutting property was taken and the trial took place at the Taunton District Court. Plaintiffs and Defendants filed their Post-Trial Memoranda on September 19 and 20, 2011 respectively, at which time the matter was taken under advisement.

At trial, testimony for Plaintiffs was given by Maria and Alvaro DaRosa (Plaintiffs and abutters), John DeSousa (civil engineer) and Troy Medeiros (ZBA member and Defendant). Testimony for Defendants was given by Daniel Baptista (homeowner and Defendant), John W. Delano (land surveyor and engineer) and Michael S. Mendonca (construction manager).

Based on the sworn pleadings, the evidence submitted at trial and the reasonable inferences drawn therefrom, the undisputed facts are:

1. Plaintiffs reside at 1185 Bay Street, in Taunton Massachusetts.

2. The north side of Plaintiffs' property abuts the south side of the Baptistas' property.

3. The Baptistas have a water drainage problem with their current driveway and garage. The down gradient driveway, approximately three and one-half feet below the street level, allows rainwater to run towards the current garage, located on the north side of their house and facing Bay Street. The driveway's drainage system is ineffective in handling the water flow, due to an insufficient drainage pipe located in the driveway, resulting in flooding of the garage during periods of rain. [Note 1] However, this problem is alleviated with the addition of a water pump located inside the garage.

4. To permanently solve their water problem, on or around May 13, 2010, the Baptistas applied for the Variance to construct the Addition on the south side of their house. The Addition would consist of a two car garage at ground level, [Note 2] a bedroom above the garage, and attic space above the bedroom. The gradient of the parcel in regards to water runoff is more favorable on the south side of the house.

5. The City of Taunton Zoning Ordinance (the "Ordinance") § 6.3, requires houses to have a sideline setback of fifteen feet from the property line. The Addition would violate this provision by approximately three feet nine inches, which is the reason the Baptistas applied for the Variance.

6. On May 13, 2010, the ZBA held a hearing on the Baptistas' Variance application. Plaintiffs were present and expressed opposition to the granting of the Variance, citing concerns about fire, general safety and privacy. The ZBA continued the hearing for one month to allow the Baptistas time to adjust their engineering specifications to address Plaintiffs' concerns.

7. The Baptistas submitted a revised proposal and the ZBA held a second hearing on June 10, 2010. Although given notice, neither Plaintiffs nor their attorney attended this second hearing, and though they did request another continuance (which was denied), they did not submit any memoranda in opposition to the Variance.

8. On June 18, 2010, the ZBA granted the Baptistas the Variance relative to Ordinance § 6.3. [Note 3] According to the Baptistas' construction plan, the west edge of the Addition will be located eleven feet three inches from the sideline, instead of the required fifteen feet. However, due to the angle of the lot line, the east edge of the Addition will remain greater than fifteen feet from the lot line and conform to the Ordinance requirements.

9. The distance between the Baptistas' house (with the Addition) and the Plaintiffs' home is between "46.9 feet...to 46.7 feet". [Note 4] The sideline setback requirements contemplate a minimum distance of thirty feet (i.e. fifteen foot side yard setbacks for each property).

10. On July 6. 2010, Plaintiffs, pursuant to G. L. c. 40A § 17, appealed the ZBA's decision granting the Variance to this court.


Plaintiffs contend that the ZBA's decision to grant the Variance to the Baptistas was in excess of their authority because the Baptistas do not meet the statutory prerequisites for a variance and that the decision was "rubber-stamped" and therefore made in bad faith. Defendants argue that all statutory requirements for a variance were met and the decision was made in good faith, but as a threshold issue, they claim that Plaintiffs do not have standing under G. L. c. 40A and, therefore, cannot prosecute an appeal of the ZBA decision to this court. I will address the standing issue first.

G. L. c. 40A § 17, in relevant part, states "Any person aggrieved by a decision of the board of appeals or any special permit granting authority...may appeal to the land court department...[w]ithin such twenty days." Plaintiffs must be categorized as a "person aggrieved" or the case must be dismissed since they would be without standing and this court without jurisdiction. See Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 202-203 (1957); Carr v. Bd. of Appeals of Medford, 334 Mass. 77 , 79 (1956). Standing is a jurisdictional issue, and it is immaterial when it is raised by the parties or considered by the court. Marotta, 336 Mass. at 203; Ensign v. Faxon, 224 Mass. 145 , 151-152 (1916). An "aggrieved person" is one who will suffer a violation of a private right, property interest, or legal interest. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); See also Harvard Square Def. Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). However, if Plaintiffs qualify as "Parties in interest," who would be entitled to notice under G. L. c. 40A § 11, they have a rebuttable statutory presumption of standing - direct abutters are considered parties in interest. 81 Spooner Road, LLC. v. Zoning Bd. of Appeals of Brookline, 78 Mass. App. Ct. 223 , 241 (2010); Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006). If the presumption of standing is properly rebutted by Defendants then Plaintiffs must prove standing, "which requires that the plaintiff 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 (citing Barvenik v. Bd. of Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992)). Plaintiffs are not required to prove by a preponderance of the evidence that their claims of different and special injury will prevail on the merits but rather, they must put forth "credible evidence" that substantiates their claims. Central Street, LLC. v. Zoning Bd. of Appeals of Hudson, 69 Mass. App. Ct. 487 , 492 (2007) (citing Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005)). Plaintiffs' evidence will be considered "credible" if it "provide[s] specific factual support for each of the claims of particularized injury the plaintiff has made ... [and is] of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Id. Finally, it is particularly important to note that the rights or interests Plaintiffs claim are being injured must be ones that G. L. c. 40A and the Ordinance are intended to protect. Standerwick, 447 Mass. at 27-28 (citing Circle Lounge & Grille, Inc. v. Bd. of Appeals of Boston, 324 Mass. 427 , 431 (1949)).

Plaintiffs, as direct abutters, are given a presumption of standing to bring suit under G. L. c. 40A. However, I find that Defendants have satisfied their burden and effectively rebutted Plaintiffs' presumption of standing. They have properly rebutted the presumption by introducing evidence and testimony, specifically the testimony of John Delano and Michael Mendonca, relative to Plaintiffs' alleged concerns of fire, building stability, privacy, diminution in property value, and water runoff, and the alleged impact of such concerns on Plaintiffs' property stemming from the Addition, which indicates that Plaintiffs may not, in fact, suffer any infringement of their legal or private rights. Therefore, Defendants have introduced "more than mere denials or defenses" to rebut the presumption; they have affirmative evidence to the contrary, and Plaintiffs are now required to prove standing. See Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003); Watros v. Greater Lynn Mental Health and Retardation Ass'n, Inc., 421 Mass. 106 , 111 (1995). Since the presumption of standing has been rebutted, Plaintiffs must prove, through credible evidence, that the Addition will: infringe on a protected private right, property interest, or legal right; that the infringement is not speculative; and that the injury is "special and different" from the concerns of the community at large. See Marishlian, 421 Mass. at 723; Planning Bd. Of Hingham v. Hingham Campus, LLC., 438 Mass. 364 , 369 (2003) (quoting Bell v. Zoning Bd. Of Appeals of Gloucester, 429 Mass. 551 , 554 (1999)).

Plaintiffs' alleged injuries in this case consist of: 1. Concerns about fire, in that the Addition would be closer to Plaintiffs' house and such closeness poses a greater risk of spreading a possible fire, 2. Concerns about the stability of the Addition as attached to the Baptistas' house, 3. Concerns about privacy because of the height and placement of the Additions' balcony, 4. Concerns over water runoff from the Baptistas' property onto Plaintiffs' property, and 5. Concerns about diminution of Plaintiffs' property value. Each of these concerns will be examined in turn to determine if Plaintiffs have standing.

Concerns over fire are not sufficient to confer standing upon Plaintiffs. The concern is purely speculative, as there is no evidence that the Addition, due to its construction or placement, would pose a greater fire risk than any other present structure. It also is not a concern that is within the purview of the Ordinance or G. L. c. 40A, but rather should be pursued under local and state building codes and procedures. "The building code and zoning laws have different purposes and procedures. Whereas the main purpose of zoning is to stabilize the use of property and protect the area from deleterious uses, the building code relates to the safety and structure of buildings." Rinaldi v. Bd. of Appeals of Boston, 50 Mass. App. Ct. 657 , 660 (2001) (plaintiff abutter's concern that defendant's combination of two, three story buildings, into a single unit posed a greater risk of fire was not sufficient to convey standing under the zoning laws but rather was an issue for the State Building Code of Appeals) (citing Carstensen v. Zoning Bd. of Appeals of Cambridge, 11 Mass. App. Ct. 348 , 356-357 (1981)). It is true that public safety may be a legitimate goal for zoning ordinances, Rinaldi, 50 Mass. App. Ct. at 658, and public safety is an expressed concern in the Ordinance's stated purpose, but Plaintiffs' argument deals with the safety and structure of buildings and not public safety or a specific zoning concern. Hence, concerns about fire generally fall within the purview of the State Building Code, which has an appellate procedure wholly distinct from zoning; and therefore it is not an issue properly presented in this case and does not convey standing for appeals of zoning board decisions. [Note 5] Id. Moreover, Plaintiffs have not produced any evidence to support their allegation of an increased danger of fire, but instead have only testified to a speculative and general concern. Therefore, I find that Plaintiffs' concerns regarding fire are too speculative, beyond the scope of the Ordinance and G. L. c. 40A, and do not confer standing for this appeal.

A related claim proposed by Plaintiffs is that the Addition will be structurally unsound due to the current conditions and dimensions of the foundation of the Baptistas' house, and therefore presents a safety problem as the Addition might collapse in the direction of Plaintiffs' home. As noted above, issues such as these are not within the purview of G. L. c. 40A or the Ordinance; they are instead building code claims which are not properly before this court. Moreover, Plaintiffs did not present any evidence to support their concerns about the structural inadequacy of the Addition other than unsubstantiated claims that rest upon the Addition failing to meet basic regulatory building standards, such as state and local building codes. [Note 6] As a result, I find that Plaintiffs' concern regarding the structural integrity of the Addition is beyond the scope of the Ordinance and G. L. c. 40A, and does not confer standing upon Plaintiffs.

Plaintiffs' next alleged injury is the infringement of their privacy. They argue that the Addition's height will allow the Baptistas to peer over Plaintiffs' fence from the balcony, located on the east side of the Addition, and watch them in their pool and see into their windows. To bolster this argument they present evidence that, during the first ZBA hearing, all of the parties involved discussed privacy as a concern and the ZBA directed the Baptistas to revise the plan, in part, to specifically address this concern, thereby flagging privacy as a protected injury. Plaintiffs point out that the revised plan did address this concern by removing exterior windows on the south wall of the Addition (the wall facing Plaintiffs' house) and narrowing the Addition by two feet. However, Plaintiffs' reliance on the ZBA's requested revisions is misguided. The ZBA's privacy concerns were in the context of statutory variance requirements, i.e. "...that desirable relief may be granted without substantial detriment to the public good..." (emphasis added). G. L. c. 40A § 10. Though Plaintiffs' privacy was being specifically addressed by the ZBA, it was in the context of public good within the neighborhood and therefore, the fact that privacy was considered and acted upon does not prove injury for standing purposes. [Note 7] First, there is no express protection of privacy afforded in G. L. c. 40A or the Ordinance regarding ones own backyard, especially not a privacy concern regarding an intrusion of a private citizen such as the Baptistas. [Note 8] The fact that a person who stands on the balcony, if they desired, could look to the right [Note 9] and see into Plaintiffs' back yard does not mean that they would be invading Plaintiffs' constitutional right to privacy. [Note 10] Plaintiffs' evidence in this regard is speculative; Maria testified that she "would assume" the Baptistas would look onto her property. It is no different than if someone stood on the ground in the Baptistas' yard and looked across the property line onto Plaintiffs' yard, an act that no one could claim was an invasion of privacy without something more to indicate unlawful intrusion. It is part and parcel of choosing to live in a residential neighborhood that a person might be seen by neighbors when they are outdoors, and being so seen does not involve statutory privacy rights. Thus, I find that Plaintiffs' concern over privacy is not sufficient to confer standing because it is beyond the scope of G. L. 40A and the Ordinance and is purely speculative, as Plaintiffs have produced no credible evidence showing any particularized injury.

Plaintiffs' next claim of injury, related to the privacy claim, is that the Addition will diminish the value of their property. Plaintiffs cannot prove standing by showing, solely, that the ZBA's decision to grant a variance will diminish the value of their property. See Standerwick, 447 Mass. at 31-32; Central Street, LLC., 69 Mass. at 487. Instead, Plaintiffs must show that the diminution in value is a "derivative or related to cognizable interests protected by the applicable zoning scheme." Standerwick, 447 Mass. at 31-32; Central Street, LLC., 69 Mass. at 487. Equally important, Plaintiffs must establish the diminution of value by competent expert testimony. Sheppard v. Zoning Bd. of Appeals of Boston, 74 Mass. App. Ct. 8 (2009) (plaintiff's claims of diminution of value was insufficient, even though the plaintiff was a real estate broker). Here, no one other than Maria mentioned or testified to diminution of value, and the issue is not raised in Plaintiffs' complaint or their post-trial brief. [Note 11] Thus, since no competent expert has testified to the claim of diminution of value, and Plaintiffs did not claim that diminution in value is related to any cognizable harm, I find that this claim does not confer standing upon Plaintiffs. [Note 12]

Plaintiffs' final claim of injury is that the Addition will create a water run-off problem on their property - this concern is within the scope of G. L. c. 40A and the Ordinance. Maria testified that present drainage from the Baptista property to Plaintiffs' property is a problem, but she did not testify that the Addition would exacerbate the drainage problem. In addition, Plaintiffs' claims of injury regarding possible future water drainage problems stemming from the Addition, based on expert testimony, are speculative and are not supported by any credible evidence. The Baptistas' expert, Mr. Delano, testified that, following all regulatory requirements, he anticipated that a "swale" [Note 13] would be used to control any water drainage, but also that any number of effective drainage systems, depending on the exact level of the water table, could be designed and built that would prevent any adverse impact from drainage on Plaintiffs' property. [Note 14] Plaintiffs' expert, Mr. DeSousa, testified that it might not be possible to construct a swale next to the Addition as proposed, but instead a "wetpond" [Note 15] might be required, but such testimony did not indicate that drainage from the Addition would be a problem. [Note 16] Plaintiffs' expert testimony does not produce the credible evidence "of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Central Street, LLC., 69 Mass. at 492. Mr. DeSousa's testimony does not convince this court that any injury will or is likely to occur to Plaintiffs' property; to the contrary, he indicates that whatever the drainage problem, it can be corrected. Any concerns are speculative because the evidence shows little to no chance that Plaintiffs will be adversely affected in any manner by drainage. Therefore, I find that Plaintiffs' concerns about water drainage problems are too speculative, are not supported by credible evidence and do not confer standing.

In conclusion, Defendants properly rebutted Plaintiffs' presumption of standing as parties in interest. Plaintiffs then failed to prove that they are persons aggrieved for statutory standing. As a result, I dismiss this case because this court is without jurisdiction to determine its merits.

Judgment to issue accordingly.


[Note 1] One inch of rain results in approximately four hundred and forty gallons of water on the driveway flowing towards and into the garage.

[Note 2] The garage on the proposed Addition will be at street level, as opposed to below street level where the current garage is located.

[Note 3] Ordinance § 6.3 contains an "Intensity of Use Table," wherein it proscribes a "Minimum Side Yard Setback" of fifteen feet from the lot line for "Suburban Residential" districts.

[Note 4] This distance was testified to by John Delano, a surveyor and engineer.

[Note 5] However, even if the Ordinance was intended to deal with this fire concern, as Plaintiffs contend, then the protection granted to homeowners would be found in the sideline setbacks. With the sideline setbacks' fifteen foot minimum allowance, the Ordinance contemplates that thirty feet is an acceptable distance for houses to be from one another in the pursuit of safety from problems such as fire. If the Addition is built as permitted, the closest distance between the Plaintiffs' and Baptistas' houses would remain greater than forty feet. So, although the Variance allows the Baptistas to violate the setback, the Addition still remains well beyond the minimum distance contemplated under the Ordinance for safety.

[Note 6] John DeSousa's testimony, even if relevant, is speculative at best, as he testified as to a structural collapse "possibly" going over the property line.

[Note 7] In fact, since the revised plans which resulted from the ZBA hearing acted to mitigate privacy concerns, Plaintiffs have a less compelling case for proving injury than they would have had the plans not been revised.

[Note 8] Constitutional privacy rights generally come in the form of protection against state intrusion, generally in the context of searches and seizures, and are not provided as a matter of property rights against other citizens. In Massachusetts, tortious (as opposed to constitutional) interference in another's right of privacy involves much more than the possibility of observing conduct in another's yard; invasion of privacy involves both obtaining private information and unreasonably disclosing that information. Carmack v. Natl. Railroad Passenger Corp., 486 F. Supp. 2d 58 (D. Ma. 2007). A person is protected against "unreasonable, substantial or serious interference with his privacy," G. L. c. 214 § 1B, but there is no evidence presented or law cited that would indicate that there is anything unreasonable about neighbors casually observing outside activities of one another. See also Restatement (Second) of Torts § 652B (". . . a landowner cannot prevent an adjoining landowner from erecting or maintaining windows in a wall on the latter's land overlooking the premises of the former, unless the landowner has safeguarded his or her privacy by deed or contract.")

[Note 9] The balcony faces Lake Sabbatia, not the Plaintiffs' yard, although the yard can be seen off the right side of the balcony.

[Note 10] In order for Plaintiffs' to have a claim for tortious interference with their right to privacy they would have to show unreasonable and substantial interference into a protected area that resulted in highly personal or intimate information being uncovered that was then unreasonably disclosed in the public domain. See generally Dasey v. Anderson, 304 F. 3d 148 (1st Cir. 2002); See also Bennett v. City of Holyoke, 230 F. Supp. 2d 207 (D. Ma. 2002); Carmack, 486 F. Supp. 2d 58.

[Note 11] At trial, Maria testified, without any evidence, of her opinion that the privacy issue would impact the valuation of her property. She gave no figures or rationale in this regard.

[Note 12] See also Kenner v. Zoning Bd. Of Appeals of Chatham, 459 Mass. 115 (2011), where the Supreme Judicial Court held that, "Given that, here, the Kenners' [alleged protected interest] is not an interest protected by the town of Chatham's zoning bylaw, and that the judge concluded, in any event, that any impact on [the alleged protected interest] would be de minimis, the alleged diminution in value of the Kenner property is not a basis for standing."

[Note 13] A swale is a water drainage system designed to channel large amounts of water. It is anticipated that one will be used on the Baptista's property to properly contain run-off from the Addition.

[Note 14] There has not been a formal drainage plan submitted to the Building Department or the ZBA, as the Variance is required before such filing can occur; however, as a practical matter, the south side of the Baptistas' house (where the Addition is to be built) does not slope toward Plaintiffs' property.

[Note 15] A wetpond is a basin created into the water table that remains wet for most of the year. It is used to control water runoff only as a last resort, when other water control options are insufficient.

[Note 16] Mr. DeSousa's testimony was as follows (in response to Plaintiffs' attorney):

Q. Was it your testimony that you believe that you could design something that would prevent water from flowing onto the DaRosas' property, regardless of the situation of a water table here and how wet it is?

A. Well, I mean, from an engineering standpoint of view, there's always a way to do something. It's a matter of how much money the person is willing to expedite [sic] in order to do it.

Q. So it's your belief that it can be done?

A. It can be done, but probably at an - - it would be an expensive proposition to do.