MISC 10-423010

December 20, 2012

Sands, J.


Plaintiff Antranig Manasian ("Manasian"), as Trustee of 1843 Realty Trust, filed an unverified Complaint of February 19, 2010, pursuant to G.L. c. 40A, §17, appealing a decision of Defendant Zoning Board of Appeals of the Town of Falmouth (the "ZBA"), which granted a variance (the "Variance") to Defendant Marigoula Troubalos ("Troubalos") (together, "Defendants") for the construction of a single family home with less than required front yard setback. A case management conference was held on April 26, 2010. Troubalos filed her Motion for Summary Judgment on June 30, 2011, together with supporting memorandum, Statement of Material Facts, and Appendix containing Affidavits of John P. Doyle and Michael J. Markoff, Esq. On July 1, 2011, Manasian filed his Motion for Summary Judgment, together with supporting memorandum, Statement of Facts, and Appendix containing the Affidavits of Antranig Manasian, Douglas C. Azarian, and Jack K. Merrill, Esq. On July 28, 2011, Troubalos filed her Opposition, together with a Statement of Additional Material Facts, and Supplemental Appendix containing the Affidavits of Rita Klapes and John Corrway. On July 28, 2011, Manasian filed his Opposition. A summary judgment hearing was held on August 1, 2011, and a decision ("Decision 1") was issued on November 22, 2011, in which this court found that it had subject matter jurisdiction over the Complaint, and that Manasian's alleged harm of property devaluation due to an obstructed view of his property to and from Nathan S. Ellis Highway was a cognizable harm protected by the Falmouth Zoning Bylaw. This court could not, however, make a determination of whether the harm was particularized to Manasian or whether the impaired views to and from Manasian Property (defined, infra) were "de minimis."

A pre-trial conference was held on April 4, 2012, and a site view and trial at the Falmouth District Court was held on July 23, 2012. After Manasian testified and rested his case, Troubalos argued an oral motion for a directed verdict, which this court did not act on at that time. Troubalos filed her Post-Trial Brief on September 24, 2012. Manasian filed his Post-Trial Brief on September 26, 2012, and the matter was taken under advisement.

Testimony at trial for Manasian was given by Antranig Manasian (Plaintiff). Testimony for Defendants was given by James Weaver (engineer), Priscilla Geraghty ("Geraghty") (realtor), Tom Bunker (surveyor), and Rita Klapes (daughter of Troubalos). Twenty-eight exhibits were submitted into evidence, some in multiple counterparts.

Based on the sworn pleadings, the evidence submitted at trial, the evidence and briefing submitted for the summary judgment hearing resulting in Decision 1, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Troubalos owns property located at 0 Nathan S. Ellis Highway in Falmouth, Massachusetts ("Troubalos Property"). Troubalos Property is zoned Residential B, and has a rectangular shape. Troubalos Property is shown on plan titled "Site Plan of Land Prepared for Marigoula Troubalos Showing the Proposed Dwelling Lot No. 2 Nathan Ellis Highway Falmouth, Ma." dated November 25, 2009, and prepared by John P. Doyle, PLS (the "2009 Plan").

2. Manasian owns property located at 28 Nathan S. Ellis Highway (hereafter "Route 151") in Falmouth, Massachusetts ("Manasian Property"), which directly abuts Troubalos Property on Manasian Property's eastern boundary. Manasian Property is zoned Residential B.

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

4. By a deed dated October 20, 1980, recorded in the Barnstable County Registry of Deeds (the "Registry") in Book 3178, Page 1, John L. Kowalski took title to Troubalos Property. This deed states that Troubalos Property is burdened by the Easement. By deed dated October 23, 1980, John L. Kowalski conveyed Troubalos Property to Troubalos and her husband. Said deed provided that the "conveyance is made subject to all easements of record, insofar as the same are in force and applicable."

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

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

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

7. By decision dated September 1, 2000, the ZBA granted a setback variance to Michael Shanahan (Manasian's predecessor), which allowed the construction of a single family residence on Manasian Property within sixty-five feet of frontage on Route 151. This variance was based on the finding that the shape of Manasian Property, as a result of the Easement, constituted a hardship because Manasian Property could not be built upon without a variance.

8. By deed dated October 6, 2006, and recorded in the Registry in Book 21413, Page 244, Michael Shanahan conveyed Manasian Property to Manasian.

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

10. Manasian received notice of said variance application and he appeared at a public hearing on January 21, 2010, at which the variance application was discussed.

11. By decision dated January 21, 2010, and filed with the Falmouth Town Clerk the same day, the ZBA granted Troubalos the variance (the Variance, as defined, supra). The decision of the ZBA relative to the Variance (the "ZBA Decision") was based on the following findings:

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

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

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

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

13. Manasian testified that he would like to construct either an office building, medical building, or a mixed-use facility on Manasian Property. On several occasions, Manasian unsuccessfully petitioned the Town of Falmouth for various forms of zoning relief to allow for commercial or mixed-use development on Manasian Property.

14. Manasian testified that he is concerned that a residential home on Troubalos Property will devalue Manasian Property. Manasian believes that a house on Troubalos Property will impede the view of Manasian Property from Route 151 and Route 28, and will also impede the view of Route 151 from Manasian Property. Manasian's major concerns regarding view relate to the potential of Manasian Property to be developed as commercial or mixed-use space.

15. Geraghty, a real estate professional, testified that Manasian Property will likely appreciate in value as a result of a residence on Troubalos Property. Geraghty also testified that Manasian Property would be very difficult to sell as a residential parcel because there is a power line directly behind the residence, there is a parking lot adjacent to Manasian Property, and Manasian Property abuts Route 151, which is a major thoroughfare. The home directly across the street from Manasian Property is shielded from Route 151 with a high fence.


Manasian argues that he has standing to challenge the Variance and that the decision of the ZBA to grant the Variance was arbitrary, capricious, and unreasonable. Conversely, Troubalos argues that Manasian has no standing to challenge the Variance, and the decision to grant the Variance was valid. I shall address each issue in turn.

A. Standing

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

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

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

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

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

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

Applying these principles to the case at bar, Manasian is presumed to have standing as an "aggrieved person" because he is a direct abutter to Troubalos Property. Watros, 421 Mass. at 111. Manasian claims standing based on an impaired view from Manasian Property and an impaired view of Manasian Property from Route 151. Manasian alleges such impaired views are directly related to the Variance and the frontage relief granted to Troubalos. Manasian also claims standing based upon diminution of value of Manasian Property as a direct result of the Variance.

Troubalos properly challenged Manasian's presumption of standing at summary judgment and at trial. Trouboulis offered both affidavit testimony (at summary judgment) and direct testimony from a witness (at trial) regarding lack of diminution in value of Manasian Property. At trial, for example, Geraghty, a licensed real estate broker, testified that construction of a residence on Troubalos Property will cause an appreciation in value of Manasian Property. This testimony is sufficient to rebut Manasian's presumption of standing. Accordingly, I shall examine standing based upon all of the evidence presented to the court. "Once the presumption is rebutted, the burden rests with the plaintiff to prove standing." Standerwick, supra, at 33.

As discussed, supra, in Decision 1, this court determined that Manasian's alleged harm of property devaluation due to an obstructed view was a recognized harm protected by the Bylaw. At summary judgment, Manasian did not offer evidence relative to the degree of harm, whether such harm was particularized to Manasian Property, or whether such harm was de minimis. In order for the harm to be particularized, Manasian must show that the harm is specific to Manasian Property and not all properties on Route 151.

At trial, Manasian produced very little evidence, if any, relative to his harm of obstructed view, let alone any evidence relative to particularized harm. Manasian's post-trial brief is similarly devoid of any argument relating to his harm. On cross-examination, Manasian testified that he is "trying to preserve the view from [Manasian Property] looking east to north-east [over Troubalos Property]." The view from Manasian Property to the east/north-east consists of Troubalos Property and a view of the traffic on Route 151. [Note 1] Manasian has no expectation that Troubalos Property would remain undeveloped to perpetuity. Manasian also testified that Manasian Property is currently unoccupied. Accordingly, Manasian testified that he could not hypothesize on whether a future tenant or occupant of Manasian Property would be "offended by the Troubalos house." Manasian's testimony can only be summarized as vague and speculative. Manasian recognized that to speculate regarding a tenant's opinion of the view from Manasian Property would be merely a "hypothetical." This court cannot find standing based on a hypothetically diminished view.

Manasian also testified the Troubalos house will block the view of Manasian Property from Route 151. Manasian's primary concern in this regard is in the event Manasian Property is converted to medical or mixed-use space, persons traveling along Route 151 will not have a view of the building on Manasian Property. As it exists today, Manasian Property is zoned for residential use and an incomplete residential structure sits on Manasian Property. Despite numerous attempts, Manasian's efforts to obtain approval to convert Manasian Property to commercial space has been unsuccessful. The degree of Manasian's stated harm is therefore either non-existent or de minimis. Manasian's alleged harm, loss of view of Manasian Property (as a medical or office facility) from Route 151, is not relevant to Manasian Property as it exists today. And finally, Manasian did not give any evidence at all as to how his harm, if it did exist, was particularized to him. As Troubalos rebutted Manasian's presumed standing, the burden is on Manasian to come forth with evidence to prove particularized harm. Standerwick, supra, at 33. Manasian's erratic testimony did not establish particularized harm.

Based on the foregoing, I find that Manasian does not have standing to challenge the Variance based on view.

Separate and distinct from his alleged harm of diminished view, Manasian states that Manasian Property will be devalued as a result of the Variance and construction on Troubalos Property. Diminution in value cannot be an independent basis for standing, but must arise out of another protected harm. See Kenner, supra, at 123, citing Standerwick, supra, at 31-32. Manasian has not made a case for standing based on diminished view. Nonetheless, the court shall comment on Manasian's claim of diminution in value caused by the Variance.

Manasian claims that Manasian Property will be devalued because Troubalos plans to build a small home on Troubalos Property, adjacent to the large residential structure currently on Manasian Property, and because Troubalos' home will violate front yard set-backs. At summary judgment, this court ruled that the conflicting affidavits of Azarian (for Manasian) and John Corrway (for Troubalos) gave rise to an issue of material fact relating to diminution in value of Manasian Property. At trial, Manasian did not produce any evidence whatsoever in furtherance of his diminution in value claim. Manasian did not offer the testimony of Azarian or any other real estate professional to submit evidence regarding diminution in value. [Note 2] At no point in Manasian's testimony did he begin to discuss diminution in value.

On the other hand, Troubalos offered credible evidence relative to diminution (or lack thereof) in value of Manasian Property. Geraghty testified that Manasian Property will likely appreciate in value as a result of additional residences in the vicinity of Manasian Property (including on Troubalos Property), which would likely increase the attractiveness of the surrounding neighborhood. Such residential construction, Geraghty testified, will reduce uncertainty as to what use can be made of Manasian Property and the surrounding area. Geraghty also put to rest Manasian's concern that a small house on Troubalos Property will reduce the value of Manasian Property. Geraghty credibly testified that all over Falmouth smaller residences sit adjacent to larger, multi-million dollar residences with no negative economic effect on the latter.

As a result of the foregoing, I find that Manasian has not satisfied his burden to show (1) any harm from the Variance relating to loss of view to and from Manasian Property, (2) any harm from the Variance relating to diminution in value of Manasian Property, and (3) if there were any harm, it was particularized to him. Consequently, Manasian cannot show that he has standing to challenge the Variance. Because Manasian has not established standing to challenge the Variance, there is no need to address the merits of the Variance.

Judgment to issue accordingly.


[Note 1] Moreover, the problem with view as a basis for standing is that one's visual perception is inherently subjective. Manasian may enjoy a view of traffic on Route 151 whereas another person may find such view offensive. There is evidence of a high fence on the property located directly across the street from Manasian Property. Presumably the height of such fence is to prevent noise and a view of Route 151 from said property and a view of said property from Route 151. Manasian, however, hopes to maintain his view of Route 151 over Troubalos Property.

[Note 2] This court does not find the Affidavit of Azarian presented at the Summary Judgment hearing to be persuasive. Azarian testified that smaller houses tend to devalue abutting, larger houses. Azarian gives no explanation and this contention was sufficiently rebutted by the trial testimony of Geraghty, see infra. Azarian also states that loss of view from Route 151 will devalue Manasian Property. As discussed, supra, however, Manasian has not been able to prove his case relating to degree and particularized harm relating to view.