Plaintiff Boston Outdoor Ventures, LLC, filed its unverified Complaint (08 MISC 386457) on October 24, 2008, pursuant to G. L. c. 40A, § 17, appealing a decision ("ZBA Decision 3") of Defendant City of Quincy Zoning Board of Appeals (the "ZBA") which denied Plaintiff's appeal of a decision ("ISD Decision 1") of Defendant Jay Duca, Director of Inspectional Services of the City of Quincy ("Building Inspector") authorizing a cease and desist order relative to an off-site sign (the "Sign") owned by Plaintiff and located at 313-315 Willard Street in Quincy, MA ("Locus"). [Note 1] On the same day, Plaintiff filed its unverified Complaint (08 MISC 386458), also pursuant to G. L. c. 40A, § 17, appealing a decision ("ZBA Decision 4") of the ZBA which upheld Defendant Maloney Capital Company, LLC's ("Maloney") appeal of ISD Decision 1. A case management conference was held on these two cases on December 8, 2008, and the two cases were consolidated.
On February 13, 2009, Plaintiff filed its unverified Complaint (09 MISC 393468), pursuant to G. L. c. 40A, §17, appealing a decision of the ZBA ("ZBA Decision 5") which denied Plaintiff's appeal of a second cease and desist order of the Building Inspector ("ISD Decision 2") relative to the Sign. At a status conference on May 19, 2009, this case was consolidated with the two earlier cases (these three cases together, the "Litigated Cases").
A summary judgment hearing was held for the Litigated Cases on July 12, 2010, and a Decision ("Land Court Decision 1") was issued on April 25, 2011, finding that Maloney had standing to appeal ISD Decision 1 to the ZBA pursuant to G.L. c. 40A, § 8, Maloney may challenge the issuance of the Sign's building permit (issued by the Building Inspector on February 5, 2008) (the "Building Permit"), Maloney had filed a timely appeal of the Building Permit, and ZBA Decision 3, ZBA Decision 4, and ZBA Decision 5 exceeded the scope of the authority of the ZBA. This court also initially found that the Sign must be made to conform to the proposed site plan for the construction of the Sign (prepared by Green Environmental, Inc. and dated January 3, 2007) (the "Proposed Site Plan") or Plaintiff must seek a modification of the terms of Variance 2 from the ZBA. [Note 2] However, such finding was withdrawn by Order of this court dated May 27, 2011, based on the fact that the Building Inspector "should have a chance to weigh in on the issue of the compliance of the Sign with [Variance 2]." [Note 3] The matter was remanded to the Building Inspector to respond to the As-Built Plan for the Sign.
On October 17, 2011, Plaintiff filed its unverified Complaint (11 MISC 454704), pursuant to G. L. c. 40A, §17, appealing a ZBA decision dated September 28, 2011 ("ZBA Decision 6") that reversed a decision of the Building Inspector ("ISD Decision 3"). ISD Decision 3 upheld the Sign as built pursuant to Variance 2. The ZBA, conversely, found that the Sign did not comply with the terms of Variance 2 and the Proposed Site Plan with regard to the size of its support beam, the presence of catwalks, and the Sign's cantilevering. Maloney filed its Answer on November 3, 2011, and a Case Management Conference was held on December 21, 2011, at which time this case was consolidated with the Litigated Cases.
On March 19, 2012, Plaintiff filed its Motion for Summary Judgment, along with supporting memorandum, Statement of Undisputed Facts, and Appendix, which included the Affidavits of Jonathan Serra (principal of Plaintiff), Kathryn A. Georgian (paralegal), and Donald P. Bouchard (certified real estate appraiser) (the "Bouchard Affidavit"), and the deposition transcript of Thomas M. Maloney, Jr. On April 18, 2012, Maloney filed its Opposition, supporting memorandum, Response to Plaintiff's Statement of Undisputed Facts, Statement of Additional Undisputed Facts, and Appendix including Affidavit of Matthew Lawlor, Esq. [Note 4] On April 20, 2012, the ZBA and the Building Inspector, Jay Duca, (together with Maloney, "Defendants"), filed their Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Motion for Partial Summary Judgment. Plaintiff replied to Defendants' memoranda with a Reply memorandum on May 2, 2012, and included a Response to Maloney's Additional Undisputed Facts.
A hearing was held on all motions on May 23, 2012, and the 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 that the following material facts are not in dispute: [Note 5]
1. Plaintiff has a lease to operate a sign at property located at 313-315 Willard Street in Quincy, MA (Locus). Locus is owned by James V. Biondi, Trustee of the 313 Willard Street Trust, contains 7,764 square feet, and is located in a Business "B" zoning district. [Note 6] An automobile service station, which was built in 1963 in conformance with local zoning, is located on Locus.
2. Maloney owns property located at 350-352 Copeland Street, Quincy, MA, which is near Locus, but Maloney is neither an abutter nor an abutter to an abutter within 300 feet of Locus.
3. The Quincy Zoning Ordinance (the "Ordinance") requires a minimum of 12,000 square feet for an automobile service station. [Note 7] The Ordinance also prohibits signs in the Business "B" zoning district.
4. On October 21, 1992, the ZBA ("ZBA Decision 1") issued a variance ("Variance 1") to the owners of Locus to "relocate existing fuel dispensers for petroleum products" at the automobile service station on Locus. [Note 8] ZBA Decision 1 was never appealed.
5. On April 6, 2007, Plaintiff filed an application (the "Sign Application") with the ZBA for a variance for an off-premises sign on Locus (the Sign); such variance was required for relief from the Ordinance's prohibition of signs and from setback requirements in the Business "B" zoning district. The Sign Application, which stated the dimensions of the Sign to be 48 feet by 14 feet, 82 feet high and 15 feet from the nearest public way, included a sketch of the Sign and a proposed site plan (the Proposed Site Plan) showing the location of the Sign. The Proposed Site Plan showed the Sign to have a length of forty-eight feet and the diameter of the pole to be three feet. Two undated related plans (the "Design Plans") prepared by Selby Industries, Inc. and titled "Single Post Highway Sign Board" and "Alternate V Beam Design" showed additional details of the sign construction. Both depicted "crossover catwalks" that allow crossing between the front and back of each sign face that bring the total length of the Sign to fifty or fifty-two feet (the plans do not precisely agree). Additionally, the Single Post Highway Sign Board plan showed a pole diameter of four and one half feet.
6. On May 22, 2007, the ZBA ("ZBA Decision 2") unanimously voted to approve the variance for the Sign (Variance 2). The ZBA issued a written decision dated June 6, 2007, which contained sections entitled "Evidence and Testimony Presented," "Findings of Fact," "Decision," "Discussion," and "Conditions." ZBA Decision 2 was never appealed.
7. Variance 2's "Conditions" section lays out eight conditions, primarily relating to the use of the Sign by the City under certain circumstances.
8. Variance 2's "Decision" section describes the legal standard for the granting of a variance. [Note 9] The "Discussion" section states only that "[t]he Board feels that the Variance can be granted without substantial detriment" and that "a motion was made and seconded to grant the Variance" subject to the conditions in the "Conditions" section.
9. Variance 2's "Findings of Fact" section lists four findings. First, the proposed Variance was to allow an off-premises sign and setback relief for the Sign. Second, Locus is irregularly shaped. Third, Locus is in an already high traffic area, the Sign will not generate any additional traffic, and therefore it will have a minimal impact. The fourth finding noted that Plaintiff also "made a proposal to the city with the revenue generated from the board" (presumably regarding payments to a local school and neighborhood association).
10. Variance 2's "Evidence and Testimony Presented" lists eight items, variously descriptions of oral representations made at that hearing or documents shown. Among the testimony listed is a presentation by Plaintiff's attorney at the time, seventeen other speakers in favor of the Sign, and one abutter speaking in opposition. Among the documents listed are the Proposed Site Plan, the two Design Plans, photographs of the Sign, a letter from the Department of Public Works, a petition in favor of the Sign, and seven letters in opposition to the Sign.
11. On May 22, 2007, Plaintiff submitted an application for two permits for the Sign to the Outdoor Advertising Board (the "OAB"). [Note 10] On June 7, 2007, the OAB issued two permits authorizing the Sign for 2007. These permits were renewed in May 2008 (for calendar year 2008), January 2009 (for calendar year 2009) and October 2009 (for calendar year 2010).
12. On December 17, 2007, Plaintiff filed an application for a building permit to construct the Sign on Locus and included a construction plan for the Sign (dated November 16, 2007) that showed cantilevering, a five-foot diameter pole, and a sign board length of forty-eight feet, plus a catwalk of indeterminate size (the "Construction Plan"). On February 5, 2008, the Building Inspector issued a building permit to Plaintiff (the "Building Permit"). Notice of the issuance of the Building Permit was not published and Maloney did not receive actual notice of the issuance of the Building Permit. [Note 11] Plaintiff commenced construction of the Sign on or about March 21, 2008, and the pole for the Sign was erected in mid-April 2008, in the location shown on the Proposed Site Plan. Maloney became "aware that construction had begun [in late March of 2008] but [he] didn't know what they were building," and first became aware they were building the Sign, "when they put the pole up" on Locus in mid-April. Construction of the Sign was completed in early May, 2008, at a cost of approximately $500,000 to Plaintiff.
13. The Quincy City Council held two public meetings relative to the Sign on May 19, 2008, and June 9, 2008, and adopted several resolutions relative to denying the City's use of the Sign and requesting the OAB, the ZBA, and all elected and appointed city and state officials to revoke approvals for the Sign.
14. On May 30, 2008, the Quincy City Solicitor sent a letter to the OAB requesting the OAB to revoke its permits for the Sign. By letter dated July 10, 2008, the OAB refused to do so. Thereafter, the City filed an action against the OAB in Norfolk Superior Court challenging the OAB permits, which is still pending (Case No. 08-1152-D).
15. By letter dated June 17, 2008, Maloney requested the Building Inspector to order the removal of the Sign, based on the fact that the Sign needed additional zoning relief (a variance for lot area, a variance for lot size, and a Section 6 finding), and suggested the construction of the Sign did not comply with the Proposed Site Plan. The As-Built Plan of the Sign (dated several weeks later) shows the Sign to be fifty feet in length and the diameter of the pole to be five feet. By letter to the Building Inspector dated June 18, 2008, the Mayor of the City expressed his concerns over the Sign, stating that if he had been in office at the time of Plaintiff's application for Variance 2, "it would not have passed."
16. By letter addressed to Plaintiff dated June 30, 2008 (ISD Decision 1), the Building Inspector stated that "I have determined that a 'finding' pursuant to both (1) G.L. c. 40A, § 6, and (2) the Quincy Zoning Ordinance Chapter 17.24.020 should have been considered by the Zoning Board - but was not." The Building Inspector ordered Plaintiff to "cease and desist the use of the [Sign] forthwith, until you receive a favorable decision from the Zoning Board of Appeals." [Note 12]
17. On July 21, 2008, Maloney filed an appeal of ISD Decision 1 with the ZBA, citing the fact that the Building Inspector did not require additional variances. On July 28, 2008, Plaintiff filed an appeal of ISD Decision 1 with the ZBA, challenging the requirement for a section 6 finding. The ZBA held a hearing on both appeals on September 9, 2008, and voted to require a Section 6 finding (ZBA Decision 3) in addition to the two additional variances ("Variances 3 and 4") (ZBA Decision 4). The ZBA issued its written decisions on October 8, 2008. [Note 13]
18. As a result of ZBA Decision 3 and ZBA Decision 4, the Building Inspector, by letter dated October 14, 2008, issued a second cease and desist order to Plaintiff relative to use of the Sign (ISD Decision 2).
19. By letter dated October 29, 2008, the OAB agreed to hold a hearing relative to the Sign, and such a hearing was held on December 11, 2008. On January 8, 2009, the OAB voted to deny the City's challenge to the OAB permits, and on February 19, 2009, it issued its written decision in that regard. The City has filed another action in Norfolk Superior Court challenging the OAB February 2009 decision. The City's two actions against the OAB have been consolidated.
20. On November 10, 2008, Plaintiff filed an appeal of ISD Decision 2 with the ZBA. On January 28, 2009, the ZBA issued a decision denying Plaintiff's appeal and upholding ISD Decision 2 (ZBA Decision 5) (together with ZBA Decision 3 and ZBA Decision 4, the "ZBA Decisions").
21. On July 6, 2011, after this court's amendment of Land Court Decision 1, the Building Inspector issued a decision (ISD Decision 3), stating that he determined "that the Sign has been constructed in substantial conformance with [Variance 2], and the Sign is in substantial conformance with [the Proposed Site Plan]." ISD Decision 3 further stated:
[The As-Built Plan] reflects changes that were made at the request of the applicant, prior to the construction of the billboard. The [Construction Plan] reflects an alternate location of the support pole at the side of the building. It also shows a cantilever support added at the top of the pole to allow the sign to remain in the same position as that shown on the original Zoning Board approved plan. The diameter of the support pole was increased from three feet to five feet for structural considerations. I considered these changes to be within the realm of my discretion to approve, and did approve them prior to the start of construction. While I acknowledge that the supporting structure of the sign differs from what was shown on the original plans that were approved by the Zoning Board, the height and size of the sign and its location on the site are not substantially different than what the Zoning Board approved.
22. Maloney appealed ISD Decision 3 to the ZBA. A hearing was held on September 13, 2011. The ZBA issued a decision (ZBA Decision 6) dated September 28, 2011, stating that
The Board members feel that there are substantial differences between the plans that were submitted and approved by the Board in 2007 and the pole and sign, as-built. The board feels that the differences are substantial, and that the applicant should have come back to the Board for approval of those changes which they feel are substantially detrimental to the neighborhood and public good.
The ZBA made the following findings of fact:
1. The pole and signs that were permitted by the board in 2007 are not the pole and signs that now exist.
2. The pole is two feet wider, with a five foot rather than three foot diameter; the pole is two feet further away from the building than originally depicted.
3. The length of each panel of the sign, when the structural support and catwalk are included, is 50 feet; not the permitted 48 feet.
4. Each panel of the billboard as-built is cantilevered approximately 19.8 feet off the monopole. The as-built plan showed the panels mounted directly on the monopole. The result is a width between the panels of the billboard of 25.1 feet, not the permitted 20 feet.
5. Martin Aikens, the chairman, testified, and the board so finds, that the wider monopole and the cantilevered billboard are dramatic differences in the actual billboard that he noticed when he went out to view the project. He was a member of the original board that granted the permit.
6. Councillor Brian Palmucci testified, and the board so finds, that the negative impact of the billboard, particularly the cantilevered panels, has been dramatic in the neighborhood, which is mostly residential.
7. The differences are substantial, particularly in light of the applicant's testimony at the original hearing that the major impact of the board - its physical presence - would not be dramatic in light of its 3-foot diameter, tucked in against the building. This pole is larger, more noticeable, takes up more space on the lot, and the board that sits atop it is larger and more imposing on the neighborhood.
The substantive question of this case is whether ZBA Decision 6, which ordered the Sign to be altered to conform to the Proposed Site Plan, was arbitrary, capricious, unreasonable, or legally untenable. Before that issue is addressed, however, Plaintiff asks that, although this court found standing for Maloney in Land Court Decision 1, the matter be revisited. Plaintiff asserts that Maloney lacked standing to appeal ISD Decision 3 to the ZBA. I agree that the issue should be reexamined, as differing circumstances and new developments in the case preclude this court from simply adopting Land Court Decision 1's finding of standing.
A. Presumption of Aggrievement
To have standing, a party must show "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest." [Note 14] Harvard Square Defense Fund, Inc. v. Planning Bd. Of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989). Such a violation must lead to a harm that is "special and different from the concerns of the rest of the community." Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). A presumption of such harm exists for a "party in interest" under G.L. c. 40A § 11, although that presumption is rebuttable. [Note 15] See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33, 849 N.E.2d 197 (2006). If no such presumption exists, or if the presumption is successfully challenged, a party must support their claim of harm with "credible evidence to substantiate [the] allegations," Marshalian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). This evidence must be sufficient both quantitatively and qualitatively:
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 v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). The trial judge will then make a determination on all the evidence, Marshalian, 421 Mass. at 721 ("[S]tanding becomes, then, essentially a question of fact for the trial judge."), and will not be overturned unless his or her findings are clearly erroneous, id. at 722.
Here, Maloney has provided a certified list of abutters from the Quincy Board of Assessors that includes Maloney's property. Maloney insists that this list proves that it is an abutter to Locus, making it a "party in interest" who is entitled to a presumption of aggrievement. Maloney relies on language in the first paragraph of § 11, which states that a certified assessor's list is to be considered "conclusive for all purposes," going so far as to claim such would be true even if the list is clearly erroneous.
This court once mused on such a possibility, see Rice v. McGuire, 14 LCR 359 (2006), but subsequent decisions have shed further light on this particular statutory language. In Harrington v. Kelley, 18 LCR 103 , 105 (2010), this court held that such a list was merely conclusive as to who owns what parcel for the purposes of notice; it is not a bulletproof list of parties with standing. If it were conclusive as to legal standing then, as Harrington points out, "much of the standing jurisprudence interpreting Sections 8, 11, and 17 of The Zoning Act would have to be ignored." Id.
Furthermore, in the instant case, Maloney admits to the fact that it is not an abutter, an abutter to an abutter within 300 feet, or an owner of land directly across a way from Locus; in essence, it admits to not being a "party in interest." Yet Maloney would have the court nevertheless accept the assessor's list as proof of standing. In doing so this court would be forced to find Maloney to be both a person aggrieved and not a person aggrieved. I decline to interpret the statue to such a result, and find that Maloney is not entitled to a presumption of standing when it admits to not being an abutter, an abutter to an abutter within 300 feet, or an owner of land directly across a way from Locus. See, e.g., Commonwealth v. Rahim, 441 Mass. 273 , 278 (2004) ("While a court must normally follow the plain language of a statute, it need not adhere strictly to the statutory words if to do so would lead to an absurd result.").
B. Proof of Aggrievement
Lacking a presumption of standing, Maloney again has the preliminary burden of proving its aggrievement. [Note 16] Density has been recognized as an interest protected by the Zoning Act, and an increase in density on a lot that is already nonconforming is usually sufficient evidence of particularized harm. [Note 17] While Maloney has not shown direct impact from the increase in density on the nonconforming Locus caused by the Sign, in Land Court Decision 1 it properly tethered the density increase to a diminution in property value. The devaluation was shown via the Collins Affidavit, which, at the time, was unrefuted by any opposing evidence. This time around, Plaintiff has submitted a declaration by its own expert, Donald P. Bouchard, that attacks the underlying methodology of the Collins Affidavit. Maloney has not submitted any further evidence regarding its cognizable harm, choosing to rely again wholly on the Collins Affidavit.
This case differs from the cases decided in Land Court Decision 1, however, because Maloney's alleged aggrievement flows from a different local decision: ISD Decision 3. Thus Maloney must show harm flowing from that decision, not prior decisions. Because ISD Decision 3 only concerned the deviations of the Sign from the Proposed Site Plan, Maloney must prove that it was aggrieved "by reason of [its] inability to obtain . . . [an] enforcement action," G.L. c. 40A, §8, specifically with regards to those deviations from the Proposed Site Plan.
90 Exchange, LLC v. Mayo Group Development, LLC, 17 LCR 709 (2009), is instructive. There, the complainant appealed a zoning action that expanded the number of residential lofts in a building from thirty-two to forty-nine. A number of the alleged harms, however, flowed from the initial conversion of a commercial building to residential lofts, and not from the appealed decision to increase the number of lofts. This court held that "[t]he alleged injury caused by the original conversion of Locus from commercial to residential use has no basis as a recognized aggrievement for several reasons[: f]irst and foremost, the Special Permit was not appealed." Id. at 711-712. The matter of the conversion of commercial to residential was already settled, and the complainant could not rely on injuries caused by the related decision to prove standing in the later case.
The case at bar is similar. Here, although initial permit and variance grants regarding the Sign were appealed, they were upheld in Land Court Decision 1, meaning they too were settled by a prior decision. Like the complainant in 90 Exchange, Maloney cannot base its aggrievement on harms tied to a use or structure permitted by a previous zoning action; they must be tied to the decision appealed. The question ultimately boils down to: what harm flows (or is likely to flow) from the zoning action appealed? Put another way: if a particular decision caused no harm, why grant standing to appeal that particular decision?
Maloney, then, must provide credible evidence that an adverse effect flows from ISD Decision 3. [Note 18] As the issue is now "essentially a question of fact," Marashlian, 421 Mass. at 721, the court will examine all of the evidence before it. As mentioned above, Maloney's sole evidence of harm is the Collins Affidavit. That affidavit, however, is not nearly as conclusive now as it was in Land Court Decision 1, for two reasons.
First, the Bouchard Affidavit offers a critique of the research methods (and thus the conclusions) of the Collins Affidavit. According to the Bouchard Affidavit, the Collins study compared the sale prices of properties in very different circumstances than Maloney's property: many were residential properties, some were foreclosure sales, one was a vacant lot, etc. Furthermore, beyond the makeup of the sample, the Bouchard Affidavit asserts that the number of properties in the Collins study was too small (eighteen are mentioned, but only six are truly used). These arguments, if accepted, seriously undermine the credibility of the Collins Affidavit. [Note 19]
While the Collins Affidavit offers evidence of harm flowing from the Sign in toto, it does not address with specificity harm suffered as a result of ISD Decision 3. Maloney asks this court to conclude from the Collins Affidavit that the diminution in property value is caused by the deviations of the Sign from the Proposed Site Plan, even though the affidavit only speaks to harm caused by the Sign as a whole. Furthermore, even assuming that some of the diminution is caused by the deviations, to find standing this court must conclude from the Collins Affidavit that the quantum of that harm is not de minimis.
The recent Supreme Judicial Court decision in Kenner v. Zoning Board of Appeals of Chatham, 459 Mass. 115 , 122 (2011), sets a high bar for Maloney, holding that, to have standing, challengers of a zoning action must "put forth credible evidence to show that they will be injured or harmed by proposed changes." . Furthermore, "the adverse effect . . . must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy." Id. (emphasis added). "No question" is a stringent standard indeed.
In contrast to Kenner's strict requirements, however, stand the propositions that standing is merely a "gateway," Butler at 441, and that the concept of aggrievement "should not be read narrowly," Marshalian at 721. Maloney is "not required to prove by a preponderance of the evidence that [its] claims of particularized or special injury are true," but merely to "put forth credible evidence." Butler at 441. These seemingly more lenient cases are older than Kenner, but remain good law.
Taken together, these contrasting characterizations underscore a tension in our standing jurisprudence. Standing is jurisdictional, and thus is a threshold question: a court should not proceed where it has no jurisdiction. See Marrota v. Bd. of Appeals, 336 Mass. 199 , 202 (1957). To do so would waste precious judicial resources adjudicating matters where the court lacks authority. Yet the recent torrent of standing cases has demonstrated that standing is frequently a fact-intensive issue. To deny standing at too early a stage in the litigation, before the relevant facts have been adequately explored, is to risk denying rightfully aggrieved parties their day in court.
This tension is highlighted in the case at bar. Maloney has produced some evidence of harm via affidavit, while Plaintiff has countered with, essentially, an equal and opposite affidavit. Improperly granting standing could needlessly prolong litigation that is already half a decade old. Conversely, dismissal based on undeveloped facts risks doing an injustice to Maloney. Mindful of cases where, at summary judgment, "[t]he hurdle set by the judge for the plaintiff to demonstrate that its claim of injury was tangible and particularized was too high," Cent. St., LLC v. Zoning Bd. of Appeals, 69 Mass. App. Ct. 487 , 493 (2007), and cognizant of the fact that Kenner, with its stricter standards, was decided at trial, I find that Maloney has offered sufficient credible evidence of aggrievement to show standing in its appeal of ISD Decision 3 at the summary judgment stage, even in light of the Bouchard Affidavit. While the Collins Affidavit does not speak with specificity to the deviations that are at the heart of ISD Decision 3, substantial parts of the Sign are at issue, and the harm is plausible enough to pass through the standing "gateway." This does not close the issue completely; should the case proceed towards trial it may be explored again in that context. But here, at the summary judgment stage, I decline to dismiss the case via what amounts to a "trial by affidavit." See Feliz v. 128 Imports Inc., 31 Mass. App. Ct. 965 (1992).
The Merits of the Case
This case is an appeal from ZBA Decision 6 made pursuant to G.L. c. 40A § 17. In that decision, the ZBA overturned the Building Inspector's determination in ISD Decision 3 that the Sign was in compliance with the terms of Variance 2. Plaintiff insists that the Proposed Site Plan was not incorporated into Variance 2, and therefore they should not be bound. Alternately, if it was incorporated into Variance 2, Plaintiff argues that the deviations are small enough that the Sign still substantially complies with Variance 2. Defendants contend that the Proposed Site Plan is incorporated, making the Sign's deviations impermissible. Employing the usual standard for G.L. c. 40A § 17 appeals, I will review ZBA Decision 6 to determine if it is arbitrary, capricious, unreasonable, or based on legally untenable grounds.
G.L. c. 40A § 10 authorizes the granting of variances in certain circumstances, though as the principle behind zoning is to create some degree of local uniformity, variances are to be sparingly granted. [Note 20] See Lussier v. Zoning Bd. of Appeals, 447 Mass. 531 , 534 (2006). Consequently, any ambiguities in the language of a variance are to be "resolved against the holder of the variance." Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188 , 206 (2005). In granting a variance, the local permit granting authority can "impose conditions, safeguards and limitations." G.L. c. 40A § 10. Such conditions are generally laid out explicitly in the variance. However, courts have, in some cases, read conditions as implied by the language of the variance, even if they are not explicitly labeled as such. See, e.g., Lussier, 447 Mass. at 534-535; Mendoza 444 Mass. at 206. Nevertheless, it is vital that any conditions must be clearly laid out in the four corners of the variance decision. Mendoza, 448 Mass. at 205 ("Purchasers of property or their attorneys are not expected or required to look behind the face of the recorded variance decisions to ascertain their effective scope . . . .). To later enforce vague conditions not apparent on the face of a variance would present problems for future owners of the subject property or neighboring interested parties. See Lussier, 447 Mass. at 535 ("[c]onditions on a variance must be sufficiently definite to apprise both the applicant and interested landowners of what can and cannot be done with the land.").
It is clear from the face of Variance 2 that the size and orientation of the Sign are not constrained by any explicit conditions. The "Conditions" section of Variance 2 instead speaks to other issues: annual payments by Plaintiff to a local school and a local neighborhood association, the City's ability to use the Sign under certain conditions, a prohibition on the Sign advertising for adult businesses, etc.
Absent any explicit restrictions on size, I must consider whether any implicit conditions of the type found in Lussier or Mendoza are to be found in Variance 2. The variance in Lussier did not contain an explicit condition limiting the footprint of a garage, however the court held that a parenthetical mention qualified as a restriction. [Note 21] See id. at 533. Even more on point is Mendoza, where a finding of fact in the variance was held to be a condition, even though it was not labeled as such. Mendoza, 444 Mass. at 206. The case at bar is not analogous. Although certain dimensions are mentioned in the "Evidence and Testimony Presented" section, it is clear - even when read in a light most favorable to Defendants - that such dimensions are representations of the applicant, not findings or determinations of the ZBA. They therefore cannot constitute binding conditions. See id. at 205 (finding no "legal basis for relying on the representations of the owner of the property and her counsel in the variance petition and at the public hearing").
This decision is further supported by the presence of explicit conditions elsewhere in Variance 2. These conditions are tailored, specific, and drafted in a formal legal style; they show evidence of careful consideration by sophisticated parties. I cannot help but conclude that the ZBA knew perfectly well how to add conditions to a variance and elected, for whatever reasons, to only add the eight that are expressly listed. See Spear v. Bd. of Appeals of Danvers, 77 Mass. App. Ct. 220 , 223 (2011) (finding significant that the granting authority "clearly understood how to impose conditions" and chose to include some but not others).
Although no restrictions are to be found in the text of Variance 2, the dimensions of the Sign may still be bound by any plans that are attached or incorporated. It is undisputed that the Proposed Site Plan is not attached to Variance 2. Defendants contend, rather, that it is incorporated by reference. If so, the plan's incorporation would be fatal to Plaintiff's case, as "when a variance is granted for a project 'as shown by . . . plans' . . . the variance requires strict compliance with the plans, at least so far as the site location and the bulk of the buildings are concerned." Lussier, 447 Mass. at 536 (quoting DiGiovanni v. Bd. of Appeals of Rockport, 19 Mass. App. Ct. 339 , 346-347 (1985)). The concept of incorporation is a legal one, although determining incorporation requires a careful review of the facts.
Here, the Proposed Site Plan is not mentioned overtly in the "Conditions" section of Variance 2, nor is it mentioned in the other operative sections ("Findings of Fact", "Decision", or "Discussion"). It is, however, mentioned in the "Evidence and Testimony Presented" section. [Note 22] For two reasons, I find that such mention is insufficient to conclude that the Proposed Site Plan was incorporated into the terms of Variance 2.
First, mere mention of or allusion to a plan is not conclusive evidence of its incorporation. In Lussier, it was undisputed that plans were submitted to the permit-granting authority when the variance was applied for. 447 Mass. at 532. However, although those plans were referenced indirectly by the language of the variance decision, the court held that they were not incorporated. Id. at 536 n. 8. Similarly, in the instant case, although the Proposed Site Plan and the two Design Plans were mentioned in the "Evidence and Testimony Presented" section, they are merely included as items on a list of materials from the meeting. This falls far short of the demonstrable intent to incorporate found in the variance language in DiGiovanni, which contained the words "as shown by the plans submitted . . . ." 19 Mass. App. Ct. at 346. Nothing in the language of Variance 2 speaks to the plans with such a degree of clarity - clarity required in variance conditions. Lussier, 447 Mass. at 535.
Second, incorporation of the entire "Evidence and Testimony Presented" would produce patently absurd results. The Proposed Site Plan and the Design Plans contain measurements and depictions that are in direct contradiction with each other (e.g. a pole diameter of three feet versus four and one half feet, and the differing portrayals of the crossover catwalks). All are referenced in the similar manner and with the similar degree of specificity. Should all be incorporated, the Sign could never be in compliance with the terms of the variance. Furthermore, the "Evidence and Testimony Presented" section also contains materials from those opposing the grant of the variance. To hold that those are incorporated along with the rest of the section - all referenced in the same way - would be nonsensical.
Although I need go no further, I note that if any of the application plans were to be incorporated, the most reasonable interpretation would be that all of them are incorporated. Both the Proposed Site Plan and the two Design Plans were before the ZBA and given equal billing on the face of the Variance 2 decision. If such were the case, Plaintiff would indeed be bound by the conditions implied by the plans.
However, even this would not avail Defendants, as Plaintiff would seem to be in conformity to the plans, taken together. The Design Plans show the crossover catwalks clearly. The width of the support pole, five feet as-built, is shown on one of the Design Plans as four and one half feet - the de minimis difference of inches contemplated in DiGiovanni. 19 Mass. App. Ct. at 347 n. 14 ("Where noncompliance amounts to a matter of inches, [the court] might reach a different conclusion."). As to the cantilevering, which is not depicted in the Proposed Site Plan or Design Plans, Plaintiff's Principal Jonathan Serra avers in his affidavit that it was done to comply with setback requirements. [Note 23] If true, then the Sign is more compliant with the zoning ordinance than it would be as shown in any of the plans. As variances are anathema to the very idea of zoning, any deviation from a variance's restrictions that results in increased conformity to applicable zoning requirements cannot be the cause of a zoning violation. In sum: even if all the plans were incorporated, the Sign would seem to be compliant. [Note 24]
But I need not go so far. Incorporation of any of the plans is far from clear on the face of Variance 2. The law, conversely, is clear: for a condition to apply, "it must be readily apparent either on the face of the variance or in a document incorporated in the variance by reference." Spear, 77 Mass. App. Ct. at 535. A reader of the variance should not have to deduce the intent of the ZBA, draw inferences from the application, or otherwise engage in any sort of in-depth interpretative exercise.
As the text of Variance 2 contains no conditions as to the size of the support pole, the presence of catwalks, or the orientation of the Sign, and the Proposed Sign Plans are not incorporated by reference into Variance 2, I find that the ZBA's determination that the Sign is not in conformity with the conditions of Variance 2 in ZBA Decision 6 is legally untenable and in excess of its authority. Plaintiff's Motion for Summary Judgment is ALLOWED as to the invalidity of ZBA Decision 6. Defendants' Motion for Partial Summary Judgment is ALLOWED as to Maloney's standing and DENIED as to the validity of ZBA Decision 6.
Judgment to enter accordingly.
[Note 1] The Sign had been allowed by a variance ("Variance 2") approved by the ZBA on May 22, 2007.
[Note 2] The Sign as shown on the Proposed Site Plan differs from the as-built plan of the Sign dated July 3, 2008 and prepared by Albert A. Romano (the "As-Built Plan").
[Note 3] Such finding, while originally part of the Land Court Decision 1, was subsequently deleted from the decision ("Amended Land Court Decision 1," dated May 27, 2011).
[Note 4] Defendants are also relying on the Affidavit of Webster A. Collins (real estate appraiser) (the "Collins Affidavit") which was filed with the Litigated Cases.
[Note 5] Some facts are taken from Land Court Decision 1.
[Note 6] The minimum lot size for an allowed use in a Business B zoning district is 5,000 square feet. City of Quincy Zoning Ordinance 17.20.040.
[Note 7] This requirement was added to the Ordinance in 1971, making the service station a pre-existing, nonconforming use. Ordinance 17.24.090. Service stations meeting the area and setback minimums are an as-of-right use in Business B districts, so long as no major repairs are made on-site. Service stations providing major repairs are allowed in Business B districts through the special permitting process. The summary judgment record does not present any evidence, and it is not argued, that the service station on Locus performs major repairs.
[Note 8] The exact reasons for the requirement of Variance 1 - presumably related to the already nonconforming size of lot - are not material to this decision.
[Note 9] In its entirety, the section titled "Decision" states: "A variance may be granted when the permit granting authority specifically finds that owing to circumstances relating to soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provision of the ordinances would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and desirable relief may be granted without substantial detriment, to the public good without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law."
[Note 10] Two permits were required: one for the north-facing sign and one for the south-facing sign.
[Note 11] Notice of building permits is not required by state statute. Furthermore, notice by publishing does not appear to have been required by the Ordinance, although the face of the Building Permit does state it is to be posted "so it is visible." Although the record is silent as to its actual posting, this court found in Land Court Decision 1 that Maloney did not have knowledge of the Building Permit until late March of 2008.
[Note 12] By letter to Maloney dated the same day, the Building Inspector stated that he disagreed that additional variances were needed for lot area and lot size.
[Note 13] ZBA Decision 3 stated that "[t]he applicant in Case No. 07-018 did not file for a finding under the Massachusetts General Law, Chapter 40A, Section 6 and section 17.24.020 of the Quincy Zoning Ordinance. Such a finding was necessary, due to the non-conforming nature of the site, and the change/expansion of the use at the site." ZBA Decision 4 stated that "(1) The applicant in Case No. 07-018 shall apply for a variance under Section 17.20.020, as the existing lot, used as a service station, served as the base area for the billboard; 2) The applicant in Case No. 07-018 shall apply for a Variance under Section 17.20.040, Table A, as the minimum lot size for any use in Business B is 5,000 square feet for any one particular use; and 3) The applicant shall file for a finding under the Massachusetts General Law, Chapter 40A, Section 6 and section 17.24.020 of the Quincy Zoning Ordinance, as the property at 313-315 Willard Street has operated as a non-conforming use, service station, for at least forty years, and the installation of the billboard is a substantial change and/or expansion in that use."
[Note 14] As in Land Court Decision 1, this is not a typical standing issue, where a party challenges another's standing to request judicial review under G.L. c. 40A § 17. Instead, Plaintiff challenges Maloney's standing to appeal ISD Decision 3 under G.L. c. 40A § 8. Although the standard for aggrievement discussed arose in cases dealing with § 17, the same standard applies to appeals under § 8. See Warrington v. Zoning Bd. of Appeals of Rutland, 78 Mass. App. Ct. 903 , 904 (2010) (holding that the standing requirements for § 8 and § 17 are identical).
[Note 15] The statute reads, in relevant part: "'Parties in interest' as used in this chapter shall mean 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." G.L. c. 40A § 11.
[Note 16] A certified list of abutters was wholly absent in Land Court Decision 1, where all parties agreed that Maloney was not a "party in interest."
[Note 17] See Standerwick at 31; Sheppard v. Zoning Bd. of Appeal, 74 Mass. App. Ct. 8 , 11 (2009); Dwyer v. Gallo, 73 Mass. App. Ct. 292 (2008). But see Kasperian v. Horning, 17 LCR 387 , 393 (2009) (denying standing where density increase was not shown to have direct, unique impact on complainant's lot).
[Note 18] I engage here in an inquiry as to the cause of the alleged harm, not a comparison of "the magnitude of the threat of harm . . . to the threat of harm from a use permissible as of right," although I note that such a comparison "is a factor that may be considered." See Marashlian v. Zoning Bd. of Appeals, 421 Mass. 719 , 724 (1996).
[Note 19] Recent Appeals Court decisions have called into question the idea that the trial judge makes standing determinations on "all the evidence." See Michaels v. Wakefield, 71 Mass. App. Ct. 449 , 453 (2008), Hallock v. Zoning Bd. of Appeals of Chatham, 80 Mass. App. Ct. 1104 (2011) (Rule 1:28 Decision). In Michaels, the Appeals Court held that standing "requires consideration solely of the quantity and quality of evidence the plaintiffs have presented, not the comparative weight of the plaintiffs' testimony and the Defendants'." 71 Mass. App. Ct. at 453 (emphasis added). I use the longstanding SJC standard of deciding on "all the evidence" here, see, e.g., Kenner v. Zoning Board of Appeals of Chatham, 459 Mass. 115 , 122 (2011), Marashlian, 421 Mass. at 721, 722, Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957), but I note that the outcome would be unchanged if I used the Michaels standard and ignored the weight of the Bouchard Affidavit, as I find that it does not undermine the Collins Affidavit such that "(no reasonable person" could rely on it. See Michaels, 71 Mass. App. Ct. at 453 n. 7.
[Note 20] I note that the grant of Variance 2 was not appealed and is not at issue in this case.
[Note 21] The homeowner was allowed to construct "an addition (22' x 22' attached garage). . . ." Lussier, 447 Mass. at 533.
[Note 22] The Proposed Site Plan is mentioned in the second item in a list of materials: "2) A set of plans including a Proposed Site Plan, prepared by Green Environmental, a Single Post Highway Board Plan, and Alternative Beam Design, prepared by Selby Industries Inc., stamped and signed by Emil C. Hach, a Registered Professional Engineer."
[Note 23] Serra's affidavit is not directly challenged by Defendants, although some propositions deriving from the affidavit are denied by Defendants in their Response to Plaintiff's Statement of Undisputed Facts.
[Note 24] I also note that the Sign as-built is consistent with the Construction Plan submitted in applying for the Building Permit.