MAUREEN MAURI and RONALD A. MAURI v. ZONING BOARD OF THE CITY OF NEWTON, ET AL.

Introduction

This case concerns the construction of a single-family dwelling on a preexisting, nonconforming lot at 31 Bradford Road, Newton, Massachusetts (Locus / Garage Lot). [Note 1] The plaintiffs, Maureen M. Mauri and Ronald A. Mauri (Mauris / plaintiffs) initiated the instant appeal pursuant to G.L. c. 40A § 17 in which they challenge a Decision of the City of Newton Zoning Board of Appeals (Board). That Decision sustained the issuance of a building permit by the City of Newton Inspectional Services Department (ISD) [Note 2] to defendants James D. Chansky and Bonnie E. Chansky (Chanskys / defendants). [Note 3]

The plaintiffs have filed a Motion for Summary Judgment claiming, inter alia, that the Board’s Decision was erroneous in that it stemmed from an incorrect interpretation and application of § 30-15(c)(3)(b) of the Newton Zoning Ordinances (Ordinance).

For their part, the defendants contend that the Board’s Decision is consistent with both the plain meaning of § 30-15(c)(3)(b) of the Ordinances, as well as with its historical understanding and application. As such, defendants argue that the Board’s Decision should be affirmed. To this end, they have filed a Cross-Motion for Summary Judgment in which they further argue that the plaintiffs lack the standing required to maintain the instant appeal. [Note 4] The Mauris respond that they are “aggrieved” by the Decision of the Board, [Note 5] inasmuch as the Chanskys’ proposed construction (dwelling) at Locus will intrude upon their privacy.

In the instant matter, two distinct questions present themselves. The first asks whether the plaintiffs possess the standing necessary to vest this court with subject-matter jurisdiction. [Note 6]

Based upon the Summary Judgment record, the court is satisfied that the Mauris do possess the necessary standing, and are thus “persons aggrieved” within the meaning of G.L. c. 40A § 17.

The second question concerns the decision of the Board sustaining the issuance of the Mauris’ Building Permit, and whether that Decision is legally tenable. [Note 7] The court is satisfied that the Board’s determination is not legally tenable.

Background

The building permit issued by the ISD would allow the defendants to raze an existing garage and build a single-family dwelling on the Garage Lot at 31 Bradford Road. [Note 8] The Chanskys also own and reside at 25 Bradford Road (House Lot) “immediately adjacent to the northeast” of the Locus. [Note 9] The plaintiffs own the premises and reside at 35 Bradford Road (Mauri Lot), which is “adjacent to the southwest” of the Locus. [Note 10]

The aforementioned lots [Note 11] were created by a plan recorded in 1890. Each lot has an area of 8,400 square feet, while possessing sixty (60) linear feet of frontage. “Since 1916, the House Lot and Garage Lot have been held in common ownership. [Note 12] Since at least 1917, a dwelling has been located upon the House Lot. [Note 13] Since at least 1917, a garage has been located upon the Garage Lot and used by the owners of the House Lot. [Note 14]

The Ordinance was first adopted by the City of Newton in 1922. The House Lot and Garage Lot were then located in the Private Residence Zoning District which imposed no minimum frontage or lot size requirements. [Note 15] In 1940 [Note 16] the Ordinance was amended and imposed its first frontage and lot size requirements of eighty (80) linear feet and 10,000 square feet, respectively in what was renamed the Single Residence B District. [Note 17] As a consequence of this amendment, each of the three lots became, and presently remains, nonconforming as to lot size and frontage. Under the current iteration of the Ordinance, the House Lot and Garage Lot are located in a Single Residence 2 District. For lots created prior to December 7, 1953, the frontage requirement remains at 80 feet, while the lot area requirement remains at 10,000 square feet. [Note 18] The Chanskys acquired both the House Lot and the Garage Lot in by deed dated July 15, 1987. [Note 19]

On August 3, 2009 the ISD issued a building permit to the defendants for the construction of a single family dwelling at 31 Bradford Road, the Garage Lot. The Chanskys’ proposal calls for construction to be sited from approximately 7.5 feet to 10 feet from the property line they share in common with the plaintiffs. The plaintiffs’ residence, in turn, is located approximately 4.5 feet from that common property line. [Note 20]

Plaintiffs assert that the building permit will allow their neighbors, the Chanskys, to build a far larger structure upon the Garage Lot, than the currently existing garage. [Note 21] Predicated upon exterior elevations, plans, photographs and assessors’ records included with the exhibits, this court concludes that the Chanskys’ garage consists of a modest, single story, one-car structure closely abutting the common property line between the Chanskys’ Garage Lot and their House Lot. [Note 22] By contrast, the proposed dwelling at two and half stories, would be in excess of thirty–two feet in height. It would be set back 7.5 feet to 10 feet from the common property line shared with the Mauris. [Note 23] As the Mauris’ dwelling is set back approximately 4.5 feet from that common boundary line, the two structures would be approximately 12 feet apart at their closest point.

Critically, the proposed dwelling will contain thirteen windows, including two windows in a roof dormer, on the side directly facing the Mauris’ residence. According to the plaintiffs, the proposed dwelling will extend further east than their own home. The topographical plan [Note 24] provided the court suggests a structure of approximately 55 feet in length, running alongside the plaintiffs’ dwelling.

The plaintiffs challenge the propriety of the Board’s Decision in sustaining the issuance of the building permit. They argue, inter alia, that § 30-15 (c)(3)(b) of the Ordinance was erroneously interpreted by the Board. Rather, they contend that the Chanskys’ two lots have merged rendering the Locus unbuildable as a matter of law. [Note 25]

Summary Judgment

Summary judgment must be granted when “pleadings, depositions . . . together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ.P. 56(c). The non-moving party “may not rest upon the mere allegations or denials of [their] pleadings, but [their] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial [and] [i]f [they] do[] not so respond, summary judgment, if appropriate, shall be entered against [them].” [Note 26] Having found no genuine issue of material fact, summary judgment is appropriate “where viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” [Note 27] In adjudging whether a factual issue is genuine, “the [c]ourt must determine whether the evidence is such that a reasonable [fact finder] could return a verdict for the nonmoving party.” Steffen v. Viking, 441 F. Supp.2d 245, 250 (2006), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where resolution of the case depends solely upon judicial determination of a question of law, Mass. R. Civ.P. 56(c) permits the court to grant a summary decision. [Note 28]

The moving party bears the burden of proving the absence of any genuine issue of material fact, and that he is deserving of judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The moving party has discharged said burden once “[they] demonstrate [], by reference to material described in Mass. R. Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving a legally cognizable interest” (internal quotations omitted) Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20 , 35 (2006). Said a different way, “the material supporting a motion for summary judgment…must demonstrate that proof of [an essential] element at trial is unlikely to be forthcoming” Id.

Although “the party facing summary decision [has the right] to have the facts viewed in a favorable light, . . . [it] does not entitle that party to a favorable decision.” Caitlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992). For example, where the non-moving party merely relies on “bald conclusions” they are not thereby entitled to resist a motion for summary judgment. Id.

The present appeal yields no genuine issue of material fact. Rather, the only relevant issues which this court must resolve, are issues of law. Under these circumstances, the present action is ripe for summary judgment.

Discussion and Analysis

Standing Pursuant to G.L. c. 40A, § 17.

Under G.L. c. 40A § 17, this court lacks subject-matter jurisdiction to reach the merits of a case absent a showing of “aggrievement” [Note 29] See Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 202-03 (1957). See also Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 334 (1994) (standing as an aggrieved party is jurisdictional and cannot be conferred by stipulation or waiver) (Abrams, J., Dissenting). The Appeals Court has described standing as “a gateway through which one must pass en route to an inquiry on the merits…” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005).

As owners of property directly abutting the Garage Lot, the Mauris are clearly “parties in interest,” pursuant to G.L. c. 40A § 11. [Note 30] Those entitled to notice of the proceedings are presumed to have the requisite interest. Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20 , 33 (2006). The Mauris therefore enjoy a rebuttable presumption that they are “persons aggrieved” by the Decision of the Board. See Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957). See also Marashlian, 421 Mass. 719 , 721 (1996).

In Standerwick, the Supreme Judicial Court offered the following instructive commentary regarding the presumption of standing and the manner in which it may be rebutted:

We have explained that to rebut the presumption, the defendant must offer evidence “warranting a finding contrary to the presumed fact….” [T]he presumption recedes when a defendant challenges a plaintiff’s status as an aggrieved person and offers evidence supporting his or her challenge….” {R]ebuttable presumption “continues only until evidence has been introduced which would warrant a finding contrary to the presumed fact.”

A presumption does not shift the burden of proof; it is a rule of evidence that aids the party bearing the burden of proof in sustaining that burden by “throwing upon his adversary the burden of going forward with evidence.”

Thus, an abutter is presumed to have standing until the defendant comes forward with evidence to contradict the presumption. Our conclusion that this evidence must “warrant a finding contrary to the presumed fact” does not shift the burden of proof on the issue of standing to the defendant…. [I]f presumed fact is “met and encountered” by defendant’s contrary evidence, burden of proof remains with plaintiff and is “not for the defendant to show that [the presumed fact] does not exist”

In a summary judgment context, a defendant is not required to present affirmative evidence that refutes plaintiff’s basis for standing…. [M]aterial supporting motion for summary judgment “need not negate, that is, disprove, an essential element of the claim” of the party upon whom the burden of proof at trial will rest” but “must demonstrate that proof of that element at trial is unlikely to be forthcoming.” It is enough that the moving party “demonstrate…, unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving” a legally cognizable injury.

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.”; Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 622 (1993) (deponents’ inability to “articulate whether or how the plaintiffs would be injured” were not conclusive but caused the presumption of standing “to recede.” Through discovery of the plaintiffs , the [defendant] demonstrated that the plaintiffs had no factual basis for their claims….

But the [defendant] may rebut a presumption of standing by seeking to discover from such plaintiffs the actual basis of their claims of aggrievement. If a person claiming to be aggrieved can point to no such evidence, a party seeking summary judgment is entitled to rely on that fact. Once the developer in this case rebutted the plaintiffs’ presumption of standing, the plaintiffs were required to… meet their burden to establish standing. (internal citations omitted) (emphasis added)

To rebut the plaintiffs’ presumptive standing, the court may deem sufficient, evidence adduced in the course of discovery, including depositions and answers to interrogatories.

Legal arguments and mere allegations are not sufficient to rebut the plaintiffs' presumed standing. See Watros, 421 Mass. at 111 (reversing Appeals Court judge's conclusion that presumption of standing may be rebutted by denials in defendant's Answer); Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003) (“speculation [as to whether named grantor possessed proper] authority [to convey a parcel] on behalf of a trust is insufficient to rebut [the] presumption [of standing]”); Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 128 (1999) ( [i]t is not enough simply to raise the issue of standing in a proceeding under § 17 [; t]he challenge must be supported with evidence”).

That said, evidence adduced through discovery may rebut the plaintiffs' presumed standing, such as depositions, answers to interrogatories, and expert affidavits, if they shed doubt on plaintiffs' bases for asserting aggrievement. In Cohen, the court “treat[ed] [the] submissions [of plaintiffs’ depositions] as effectively challenging the plaintiffs’ standing.” [Note 31] Essentially, plaintiffs’ presumptive standing will have receded once the defendants have either proffered affirmative evidence showing that a basis for standing is not well-founded, or alternatively, the defendants can rely on plaintiffs’ lack of factual foundation for asserting a claim of “aggrievement”. See Standerwick, 447 Mass. at 35-36. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (“trustee's deposition testimony failed to show that the proposed project will impair any interests of the trustee that are protected by the zoning laws,” rebutting plaintiffs' presumption of standing). In this way, the defendant may rebut the plaintiffs' presumption of aggrievement either by providing affirmative evidence—that a basis for aggrievement is not well founded—or by showing, in the negative, that the plaintiffs lack any factual foundation for asserting a claim of aggrievement.

Consequently, if this court is to conclude that the Mauris’ presumptive standing has been effectively rebutted, it must find that the plaintiffs’ claimed basis for aggrievement is “not well founded” or that their claims “lack any factual foundation.”

In arguing that they are persons aggrieved, the plaintiffs make the following assertion:

The Mauris claim…that “they are “aggrieved” by the decision of the Board, insofar as the Chanskys’ proposed construction (Dwelling) at Locus will result in a violation of plaintiffs’ privacy.” [Note 32] (emphasis added)

For their part, the Chanskys readily concede as follows:

The only issue by which the Mauris claim that they would be aggrieved by the construction of a home on the Garage Lot is one of privacy (Mauri Depo at 26, 32, 34-35, 38-39, 66-Exhibit 19). [Note 33] (emphasis added)

Given these acknowledgements, this court limits it consideration of the Mauris’ standing, to privacy related concerns. In their Memorandum, [Note 34] the defendants argue as follows:

The Mauris, as abutters to 31 Bradford, are “parties in interest” who enjoy a rebuttable presumption that they are “persons aggrieved” from a decision of the ZBA. Once there is a challenge to the plaintiffs’ standing, however, any presumed status as “person aggrieved” recedes, and “the jurisdictional question is decided on ‘all the evidence with no benefit to the plaintiffs from the presumption’… [T]he plaintiff must [then] put forth credible evidence to substantiate his (her) allegations. (internal citations omitted)

The defendants suggest that once a challenge is lodged, the plaintiffs’ presumptive standing recedes. Thus, in the case at bar, extracts [Note 35] from a deposition of Maureen M. Mauri have been provided in which the defendants inquired as to her aggrievement. In the course of her deposition Ms. Mauri testified, in relevant part, as follows:

A. “… the primary issue was the issue of privacy.

Q. How would the construction of a house on the garage lot, how would that impact your privacy?

A. Well, the way my house is built, it’s 4 ½ feet from our lot line, and the proposed house is then 7 ½ feet from the lot line….

We have a den that is the room that we pretty much live in that would look out onto this house, that’s a room that we don’t want to keep the blinds closed at all times. It’s a room that we watch TV in, exercise in, fold laundry in, sit in and read.

Q. So part of the issue with privacy is the fact that the proposed house would be about—

A. 12 feet….

Q. Those were… concern about privacy on upper levels of the house?

A. On all levels of the house, except the basement.

Q. You previously talked about the den, and that’s on the first floor, right?

A. Yes.

Q. And you also expressed concerns about privacy issues from a house being built next door with the two upper levels?

A. I have… two 84 inch windows that go up the staircase, and that looks directly on the sitting area on the landing and right directly into my bedroom that is on a path from a closet to a bathroom. [Note 36]

Q. Aside from privacy issues, are there any other issues that you discussed with Mr. Rieske ? [Note 37]

A. Yes,… actually this goes again to privacy. We talked about our deck, which goes off our kitchen…. And the new house, the proposed new house, would go beyond our house and past our deck and there would be a room with windows also [in the proposed house]. [Note 38]

Q. And again, the issue with that [deck] you expressed concern about is related to privacy?

A. Yes, because in the summertime we have, on a nice day, we would have breakfast out there, we could have lunch out there; when we’re home on weekends, we entertain out there and sit out there. And suddenly, now the [proposed] house extends way back there beyond our house, so that would be a privacy issue…. [Note 39]

Q. …[S]etting aside privacy issues, are there any other issues that you’ve identified…associated with the construction of a house on the garage lot?

A. Well there would be things like the noise factor from a house being so close. We’re unable to put an air conditioner in on our third floor, so we in the summer would keep those windows open. They are round windows and can’t accommodate an air conditioner….so one would assume that there would be noise with a house so close.

Additionally, the defendants have provided an Affidavit of William J. Pastuszek, Jr., an appraiser.

According to Mr. Pastuszek:

[He has] been engaged by the Defendants James D. Chansky, Bonnie E. Chansky and Ernest D. Rogers to provide [his] expert opinion as to the impact, if any, of the construction of a single family residence at the Chanskys’ property at 31 Bradford Street, Newton, Massachusetts on the value of the adjacent single family residence located at 35 Bradford street, Newton. [Note 40]

His Affidavit continues:

I have…conducted diminution of value studies and have reviewed such studies done by others. These include measuring the effect of existing or proposed potential adverse influences, easements, lot line discrepancies, and title errors. [Note 41]

He concludes as follows:

It is my opinion that the construction of the residence will not have an adverse impact on the abutters’ home at 35 Bradford Road, or on any other properties in the immediate area.

It is noteworthy that Mr. Pastuszek nowhere references the issue of privacy. Rather, as an appraiser, he focuses, not surprisingly, upon a possible diminution in value of the Mauris’ property. However, this is a form of aggrievement that Ms. Mauri raises only in passing in her deposition testimony. [Note 42] A possible diminution in value is taken up by neither party in their respective briefs. [Note 43]

This court concludes therefore that in focusing exclusively upon a possible diminution in value, the Pastuszek Affidavit is of no moment in challenging or countering the plaintiffs’ standing, presumptive or otherwise. [Note 44] Moreover, in weighing the testimony before it, [Note 45] this court is satisfied that the defendants have failed to rebut the presumption of standing enjoyed by the plaintiffs. The Mauris have provided compelling testimony concerning a likely loss of privacy. They have done so to a degree well beyond that required under Butler, supra. That loss of privacy, in turn, is adequately tethered to an interest protected by the Ordinance. The court concludes therefore that the plaintiffs’ presumption of standing has not been rebutted.

Were this court to conclude, arguendo, that the Mauris’ presumption of standing had been effectively rebutted, the burden would rest with the plaintiffs to “demonstrate, not merely speculate, that there has been some infringement of [their] legal rights” [Note 46] and “that [their] injury is special and different from the concerns of the rest of the community.” [Note 47] In Standerwick, the Court concluded that “a person aggrieved . . . must assert a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” [Note 48] Moreover, if one is to demonstrate standing, one must show that the injury occurred to “an interest the zoning scheme [sought] to protect.” Standerwick, 447 Mass. at 32.

If the Mauris are to defeat a motion for summary judgment predicated upon a claimed lack of standing, they must proffer “credible evidence to substantiate [their] allegations.” See Marashlian, 421 Mass. at 721. In Butler v. City of Waltham, 63 Mass. App. Ct. 435 (2005), the court discussed the burden of proof needed for a demonstration of standing, as follows:

Frequently, the question whether a plaintiff has made the requisite showing is a question of fact and, for that reason, a judge’s finding that a person is or is not aggrieved will not be set aside unless the finding is clearly erroneous… The “findings of fact” a judge is required to make when standing is at issue, however, differ from the “findings of fact” that [a] judge must make in connection with a trial on the merits. Standing is the gateway through which one must pass en route to an inquiry on the merits. When the factual inquiry focuses on standing, therefore, 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. “Rather the plaintiff must put forth credible evidence to substantiate his allegations. [It is i]n this context [that] standing [is] essentially a question of fact for the trial judge.” (emphasis added)

Although decided zoning cases have not discussed the ingredients of “credible evidence,” cases discussing the same concept… have observed that “credible evidence” has 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. Id at p.441. (internal citations omitted)

In Marhefka v. Zoning Board of Appeals of Sutton, 79 Mass. App. Ct. 515 , 521, n.10 (2011), the Court determined that “a protected interest can [. . .] arise implicitly from the intent of the by-law's provisions.” [Note 49] Further, where the injury alleged “relate[d] to protected density and dimensional interests,” the Marhefka Court held that “[t]he density and dimensional requirements of the by-law confer[red] standing on the plaintiffs [. . .] based on the aggravation of the preexisting nonconformity of adjoining lots.” [Note 50] Id. at 520.

See in this regard, § 30-2 of the City of Newton Zoning Ordinance, captioned Purpose of chapter, which provides inter alia, as follows:

The provisions of this chapter are ordained by the city for the purposes of promoting the health, safety, convenience and welfare of its inhabitants by:

…(b) Preventing overcrowding of land and undue concentration of population;

…(e) Lessening the congestion of traffic.

…(j) Providing for adequate light and air.

In the case of Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 296 (2008), the plaintiffs raised density concerns regarding proposed construction on two adjacent undersized lots next to their home. The Court in construing provisions of the Walpole Zoning By-Law somewhat analogous to § 30-2 supra, made the following relevant observation:

[S]ome of the local by-law’s purposes are to “prevent overcrowding of land, lessen congestion, [and] avoid undue concentration of population,” all of which are furthered to some extent by the area and frontage requirements of the by-law.

There can be little doubt, then, that the Dwyers have raised a private property or legal interest protected by the zoning by-law.

After discussing the Dwyers’ concerns including those related to increased artificial light and decreased backyard privacy, the Court concluded as follows:

Especially given the close quarters involved here [construction on two 20,000 square foot lots rather than the required 40,000 square feet], the plaintiffs’ concerns cannot reasonably be characterized as ill-founded or speculative. Accordingly, it was error for the judge to conclude that the plaintiffs lacked standing…. Id. at pp. 296-297.

[C]rowding of an abutter’s residential property in violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal. [Note 51]

The case of Sheppard v. Zoning Board of Appeals of Boston, 74 Mass. App. Ct. 8 (2008), also concerned issues of standing predicated upon, inter alia, privacy and density concerns. In Sheppard, the Court observed as follows:

This injury relates to density interests protected by applicable zoning laws…. [T]he stated purposes of Boston’s zoning code include “prevent[ing] overcrowding of land;…lessen[ing] congestion in streets; [avoiding]undue concentration of population; [and providing] adequate light and air.” The requirements regarding lot size, lot width and side yard are intended to further these purposes. (emphasis added)

Given the foregoing decisional law, this court is satisfied that the Mauris’ privacy concerns are sufficiently tethered to density interests of the sort protected by the local Zoning Ordinances. See § 30-2 referenced supra.

To lend additional support to their claims of aggrievement, the plaintiffs enlisted the services of Dennis C. Rieske, an AIA [Note 52] Registered Architect (Rieske). By means of an affidavit, Mr. Rieske provided this court with a comprehensive analysis of the impact of the Chanskys’ proposed dwelling on the Mauris parcel. In conducting his analysis, Mr. Rieske studied the permit plans for the proposed dwelling, obtained field measurements, made visual observations and provided photographs.

In furtherance of his analysis, Rieske located thirteen windows on the proposed structure and determined how they would orient to the twelve windows located on the northwest face of the Mauris’ dwelling. [Note 53] Mr. Rieske also analyzed the lines of sight from the proposed dwelling’s anticipated window banks into the Mauris’ home. [Note 54] Among Mr. Rieske’s conclusions, are the following:

[T]he windows proposed for the Lot 31 [Garage Lot] dwelling will create direct lines of sight into all the windows on the northwest side of the Mauris’ house, on the first, second and third floors. These windows permit views into the front hall, living room and den on the first floor, the staircase and hallway leading to the master bedroom on the second floor, and stairway and hallway leading to office areas on the third floor…. In addition, the windows in the bank on the left (rear) of the southeast wall of the proposed dwelling would look directly onto the middle of the Mauris’ rear deck…. I anticipate other effects to include diminished ambient daylight….

Based on the foregoing, it is my professional opinion that construction of the house proposed for Lot 31 will have a substantial and negative impact on the Mauris’ privacy and the use and enjoyment of their property.

Construction of the proposed house would also require removal of a large, twelve foot tall dense rhododendron that now provides significant screening for the Mauris’ rear deck.

Since my visit on May 2, 2010, the Chanskys erected a six-foot (6.0’) high stockade fence along much off the property line separating the Mauris’ home and Lot 31. I have inspected the fence, and because it extends at most, only one foot, approximately, above the sill lines of the first floor windows of the Mauris’ home, it is my further professional opinion that it will not significantly mitigate the negative impacts described above. [Note 55]

The photographs provided by the Affiant depict a small single story, one car garage at an appreciable distance from the Mauri residence. The Chanskys propose to demolish the garage replacing it with a two and one half story residential dwelling that would be approximately twelve feet from the Mauri residence at the nearest point. The materials provided by Mr. Rieske including elevations and photographs make clear the disparity between the size and location of the proposed dwelling verses that of the existing garage.

The Chanskys do not effectively rebut the privacy concerns raised by the plaintiffs regarding lines of sight into the Mauris’ windows and onto their deck. Rather, they rely in large measure upon their argument that compliance with the 7.5 foot setback renders irrelevant any density concern related to frontage and lot area. For their part, the plaintiffs seek to couple their privacy concerns with “deficient lot size and frontage.” [Note 56] [Note 57]

The following opinions lend support to the plaintiffs’ assertions of standing based upon claims of privacy. The first, Ulliani v. Board of Appeals of Burlington, No. 03-P-1562 (2003) is an Unpublished Opinion of the Appeals Court which this court cites for its persuasive value. In Ulliani, the Court discussed standing in the context of the plaintiff’s privacy concerns, as follows:

Standing is essentially a question of fact for the trial judge, which we will reverse only if the finding is clearly erroneous. [Here] [t]he judge found that [the plaintiff] had standing because she was an abutter whose privacy would be “greatly diminished by the presence of two homes abutting her backyard,” and because the noise level would be increased.

That [the plaintiff’s] concerns were related to the objectives of the town’s density regulation required no testimony. The Zoning Act, permits a municipality to deal with a variety of matters including density of population and intensity of use, adequate provision of light and air, prevention of overcrowding, and promotion of open space…. It is implicit that the town’s density regulation was within the scope and concern of the Zoning Act.… Accordingly it was not error for the judge to conclude that [the plaintiff] had standing. (emphasis added) (internal citations omitted)

The case of Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912 (2003), is also relevant to the case at hand. In Bertrand, the trial judge had upheld the grant of a variance on grounds that the plaintiffs lacked standing to challenge it. In reversing that decision, the Appeals Court observed as follows:

Since 1971,…Gibbons has owned two contiguous vacant lots (locus), each consisting of approximately 20,000 square feet. At the time of purchase, both lots were of buildable dimensions. Thereafter, in 1986 Bourne increased the minimum square footage required for constructing as single family house… to 40,000 square feet… [The plaintiffs] articulated concerns about increased noise, increased artificial light and decreased backyard privacy….

[T]he grounds for the plaintiffs’ objections related directly to the objectives of the density regulation at issue. Especially given the close quarters involved here, the plaintiffs’ concerns cannot reasonably be characterized as ill-founded or speculative.

Lastly, another Unpublished Opinion of the Appeals Court, Ruggles v. Board of Appeal of Boston, No. 03-P-960 (2005), is cited for its persuasive value. Once again, the Appeals Court addressed a challenge to the plaintiff’s standing as a “person aggrieved.” Concurring with the motion judge that the plaintiff possessed standing, the Court noted that a “[p]erson aggrieved” is a term that should not be construed narrowly.

It continued, as follows:

The variance [granted to the defendants] allows construction of a house within fourteen feet of the westerly wall of a house owned by the plaintiff… There are ten windows in that wall, through which, prior to the [defendants’] construction, [the plaintiff] had a westerly view of eighty feet to the nearest building wall. The new [defendants’] house now obscures the view from those windows. There is a reduction of light and air flow from the new construction, and [the plaintiff] experiences a diminution in privacy in the warmer months when the windows are open. (Emphasis added)

The facts in Ruggles are not without their parallel to the case at bar.

In view of the foregoing, this court is satisfied that the Mauris have advanced a “plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” [Note 58] Consequently, even if their presumptive standing had been adequately rebutted, this court believes that the plaintiffs have amply demonstrated their aggrievement, and therefore standing under G.L. c. 40A, § 17.

Merger

G.L. c. 40A § 6, fourth par., provides exemptions from the Merger Doctrine in relevant part as follows:

Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to the then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet or frontage.

The Garage Lot finds no protection in the Merger Doctrine set out in G.L. c. 40A, § 6 fourth par… In this regard, the defendants, in their Memorandum of Law state as follows:

The Mauris’ reliance upon case law interpreting the fourth paragraph of G.L. c. 40A, § 6 is inapplicable here, because that portion of the statute is inapplicable if “building upon such lot is not prohibited by the zoning ordinance or by-laws in effect in the city or town.”

The relevant sentence of paragraph 4, as cited by the defendants, supra, reads in its entirety, as follows:

The provisions of this paragraph shall not be construed to prohibit a lot being built upon, if at the time of the building, building upon such lot is not prohibited by the zoning ordinances or by-laws in effect in a city or town. (emphasis added)

Thus, cities and towns are afforded the opportunity to enact essentially more lenient merger exemptions than those appearing in G.L. c. 40A, § 6, fourth par. The instant appeal turns on the relevant provisions of the Ordinance, and whether they exempt the Chanskys’ Garage Lot from the operation of the Merger Doctrine.

In reaching its Decision that the Locus was exempt from the operation of the Merger Doctrine, and therefore, constituted an independent, buildable lot, the Zoning Board was called upon to construe § 30-15(c)(3)(b) of the Ordinance.

Section 30-15 provides in relevant part as follows:

Section 30-15 Density/Dimensional Requirements

Except as provided in section 30-21 (non-conforming uses), the density and dimensional controls set forth in the Tables below shall apply to all buildings, structures and uses in each of the said districts.

Subsection 30-15(c) Exceptions Applicable in Residential Districts

Any increase in area, frontage, or setback requirements prescribed in Table 1 of this section shall apply to any lot in a residential zoning district except to the extent that either the provisions of Massachusetts General Laws, Chapter 40A, Section 6, as in effect on January 1, 2001, or the following provisions, provide otherwise. [Note 59]

Any increase in area, frontage, or setback requirements prescribed in Table 1 of this section shall not apply to any lot in a residential district if all of the following requirements are met:

(1) At the time of the recording or endorsement, whichever occurred sooner, on October 11, 1940 if the recording or endorsement occurred before October 11, 1940, the lot

a) conformed to the requirements in effect at the time of recording or endorsement, whichever occurred sooner, but did not conform to the increased requirements, and

b) had at least five thousand (5,000) square feet of area, and

c) had at least fifty (50) feet of frontage.

(2) The size or shape of the lot has not changed since the lot was created unless such change complied with the provisions of section 30-26.

(3) Either

a) The lot was not held in common ownership at any time after January 1, 1995 with an adjoining lot or lots that had continuous frontage on the same street with the lot in question, [Note 60]

or

b) If the lot was held in common ownership at any time after January 1, 1995 with an adjoining lot or lots that had continuous frontage on the same street with the lot in question, such lot had on it a single-family or two family dwelling. (emphasis added)

It is undisputed that both the Garage Lot and the House Lot, at all times relevant hereto [Note 61] have been held in common ownership, are adjoining lots, and have continuous frontage on the same street, Bradford Road. [Note 62] The point of disagreement concerns the particular lot to which the phrase “such lot” refers. [Note 63] The Mauris argue that “such lot” refers to its immediate antecedent, “the lot in question,” i.e. the Garage Lot. Were that to be the case, the Garage Lot would have merged with the House Lot, thereby rendering the Garage Lot unbuildable.

For their part, the Chanskys assert that “such lot” refers to “adjoining lot or lots.” In the present context, the “adjoining lot” must be taken as a reference to the Chanskys’ House Lot. If the interpretation urged upon this court by the Chanskys were deemed correct, the Garage Lot would not have merged with the House Lot. As a consequence, the Garage Lot would be a buildable lot protected from increased frontage and area requirements. In their respective determinations, both the ISD [Note 64] and the Board have espoused the latter view.

The case turns on this narrow point of interpretation.

It is this court’s view that the language of Subsection b) is clear insofar as the phrase “such lot” refers, quite naturally, to its immediate antecedent, the “lot in question.” See Cottone v. Cedar Lake, LLC, 67 Mass. App. Ct. 464 , 469, n. 7. (“The ‘rule of last antecedent’ holds that the ‘qualifying phrases are to be applied to the words or phrases immediately preceding and are not to be construed as extending to others more remote.’” ) The “lot in question,” is, in turn, a reference, also clear, to the opening phraseology of Subsection b), i.e “If the lot was held in common ownership…” (emphasis added)

This court is satisfied that the Garage Lot, one of two commonly owned adjoining lots, sharing frontage on the same street, will have merged with the House Lot unless it can be shown that the lot in question, the Garage Lot, has been improved by a “single-family or two-family dwelling.” However, as the use of term Garage Lot in the present context suggests, Lot 31 has been improved not by a dwelling but by a garage. Inasmuch as the Locus remains unimproved by a dwelling of any sort, the lots will have been merged, thereby rendering the Garage Lot unbuildable. This view gains support from the case of Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266 (2008) In Carabetta, the Court cited the following principle:

It is well settled that “[a]djacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities….” This general rule has been applied both prior to and “after enactment of our current zoning enabling act.” Id., at 268.

The statutory “grandfather” provision contained in G.L. c. 40A, s. 6, incorporates this doctrine by providing protection from increases in lot area and frontage requirements only to nonconforming lots that are not held in common ownership with any adjoining land. While a town may choose to adopt a more liberal grandfather provision it must do so with clear language. (internal citations omitted) Id., at 269.

The Affidavit of George E. Mansfield (Mansfield Affidavit) provides useful insight into [Note 65] the legislative history associated with § 30-15 (c)(3) (b). In the case of Petrucci v. Board of Appeals of Westwood, 45 Mass. App. Ct. 818 , 823, n. 7, the Court observed that “[a]lthough clear statutory language ordinarily obviates the need to resort to rules of interpretation… legislative history may be referenced by way of supplementary confirmation of the intent reflected in the words used.” In the case at bar, the Mansfield Affidavit serves such a confirmatory purpose. [Note 66]

Conclusion

For the foregoing reasons, this court concludes that the issuance of the building permit upon the application of the named defendant Ernest D. Rogers, as agent for Bonne E. Chansky and James D. Chansky was based upon legally untenable grounds. The decision of the Zoning Board of Appeals to uphold the determination of the Commissioner of the Inspectional Services Department likewise, was legally untenable as it was based upon an erroneous interpretation of the Zoning Ordinances of the City of Newton.

In reaching these legal conclusions the court has, under the doctrine enunciated in Petrucci, supra, considered the Affidavit George E. Mansfield. The Affidavit of Michael Ullman, a Tufts university English professor stands on a different footing, however. As to the affidavit of William J. Pastuszek, Jr. the court has considered same, although for the reasons specified supra, has concluded that it is bears little relevance to the standing issue.

Accordingly, it is hereby

ORDERED that the defendants’ Motion to Strike the Affidavit of Michael Ullman, PhD. is hereby ALLOWED. It is further

ORDERED that the defendants’ Motion to Strike the Affidavit of George E. Mansfield, is hereby DENIED. It is further

ORDERED that the plaintiffs’ Motion to Strike the Affidavit of William J. Pastuszek, Jr. is hereby DENIED.

ORDERED that the plaintiffs’ Motion for Summary Judgment is hereby ALLOWED. It is further

ORDERED that the defendants’ Cross-Motion for Summary Judgment is hereby DENIED.

Judgment to issue accordingly,

SO ORDERED

By the Court (Grossman, J.)