ANTHONY PELULLO, as trustee of the Pelullo Family Nominee Trust v. SCOTT W. LANDGREN, LAURA GODIN, CHIKE C. ODUNUKWE, KEVIN P. POLANSKY and CHRISTOPHER A. SWINIARSKI as members of the Natick Zoning Board of Appeals, and MICHAEL WARE and LISA WARE.

Introduction

In this case, plaintiff Anthony Pelullo appeals from two decisions of the Natick Zoning Board of Appeals (the Zoning Board). They were a consequence of this court’s earlier decision in Pelullo v. Hickey, et al., 20 LCR 467 (2012), now affirmed by the Appeals Court [Note 1], which determined that the building permit issued to construct the house now owned by defendants Michael and Lisa Ware at 15 Upland Road was invalid because the Ware lot has insufficient lot depth. [Note 2] Shortly after the building permit was invalidated, the Wares applied to the Zoning Board for a variance from the lot depth requirement, which the Board granted. The first part of this case is Mr. Pelullo’s appeal from that decision of the Zoning Board. The second part is Mr. Pelullo’s appeal of a separate Zoning Board decision, issued the same day as the variance, denying his request for an enforcement order to compel the removal of the Ware home.

Shortly after this case was filed, the parties cross-moved for summary judgment. By Memorandum and Order dated February 28, 2014 (hereafter “Summary Judgment Mem. & Order), I ruled that the variance would be invalid if its merits were reached, but there were disputes of material fact as to whether Mr. Pelullo had standing to challenge its validity and thus a trial on that issue was required. If standing was found and the variance vacated, the case would proceed to a second phase to address the appropriate remedy—either an order to remove the illegally built house, or perhaps orders mitigating its impacts, if allowable and sufficient.

The standing issue was tried before me, jury-waived. I also took a view on two separate occasions. [Note 3] Based on the testimony and exhibits admitted into evidence at trial, my observations at the views, my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find that Mr. Pelullo has established his standing, and thus invalidate the variance.

Facts

These are the facts as I find them after trial. The background facts leading up to the trial are taken from the court’s earlier Summary Judgment Mem. & Order.

Plaintiff Anthony Pelullo, as trustee of the Pelullo Family Nominee Trust, is the owner of the single family residence at 40 Oxford Street in Natick where his elderly parents reside. The defendants Michael and Lisa Ware own and live at 15 Upland Road, a private way owned in fee to the middle line by the abutting landowners—Mr. Pelullo and the Wares at this section of the road. Although physically separated by Upland Road, the Pelullo and Ware properties thus directly abut each other.

The Ware property was originally part of a larger parcel of land on the Wellesley-Natick line. H&R Development, LLC (“H&R”) acquired the parcel in 2002 and divided the Wellesley part into 4 lots with frontage in Wellesley on Edgemoor Avenue. The remaining land, substantially all in Natick, had frontage on Upland Road, then simply an unimproved paper street shown on Land Court registration plan 26609A with a dirt path used solely by the Pelullos for access to their back yard. Mr. Pelullo and H&R each owned the fee to the centerline of Upland Road, with easement rights to pass over the other half as set forth in their settlement agreement in Pelullo v. H&R Development, LLC, Land Court Case No. 05 MISC. 310596 (KFS).

The Natick land was divided in accordance with an ANR plan submitted by H&R and approved by the Natick Planning Board in November 2009 (Lot 1A, shown on that ANR plan, is now part of the Ware property). When H&R began implementing its street improvement plan for Upland Road in order to develop its ANR lots, Mr. Pelullo filed a lawsuit on June 3, 2010, contending that H&R’s improvements violated his rights in Upland Road because they made his use of the road “less convenient and useful to an appreciable extent.” See Killion v Kelley, 120 Mass. 47 , 52 (1876). This court (Long, J.) ruled that, as an easement holder, H&R had the right to improve Upland Road for vehicular use, but its improvements, which included elevating the grade of Upland Road above the Pelullo property making access to the rear of the Pelullo property difficult and removing trees on the Pelullo side of the Road without consultation, were not made with “due regard” to Mr. Pelullo’s easement rights and needed to be remedied. See Pelullo v. H&R Development LLC, 21 LCR 33 , 36 (2013). After extensive court proceedings, these remedial measures were put in place.

In July 2010, Paul Croft, the principal of Natick Upland LLC, applied for a building permit to construct a single family dwelling on Lot 1A. See Ex. 1, attached (depicting Lot 1A). At the time of his permit application, Natick Upland was under contract to purchase the undeveloped land on Upland Road, including Lot 1A, from H&R Development. It eventually acquired this land in July 2011 after H&R defaulted on its mortgage to Needham Bank, which conducted a foreclosure sale in June 2011. [Note 4]

Mr. Pelullo opposed the issuance of a building permit for Lot 1A, contending, among other reasons, that the lot did not meet the 125 foot minimum lot depth requirement of the Natick zoning bylaw. [Note 5] The horizontal distances between the front and rear lot lines of Lot 1A range from 70.9 feet to 86.1 feet. The Natick Building Inspector, however, issued a building permit for Lot 1A on July 16, 2010, ruling that lot depth could be measured diagonally.

Mr. Pelullo appealed the building permit to the Zoning Board, which affirmed its issuance, finding that the Building Inspector’s approach to determining lot depth was “reasonable, appropriate, and consistent with established practices and procedures.” Mr. Pelullo then timely appealed the Zoning Board’s decision to this court.

While that appeal was pending in this court, Lot 1A was reconfigured into a larger, but still too narrow lot, specifically Lot 1, Parcel 1, Lots 69 & 70 (as shown on the H&R’s 2004 ANR Plan). This “new” lot is shown on Exhibit 2 (attached). Natick Upland sold this lot to the Wares on July 1, 2011.

In Pelullo v. Hickey, the defendants contended that (1) a diagonal measurement of lot depth, rather than a horizontal measure from the front lot line to the rear lot line, was valid because Lot 1A was an “odd shaped” lot, and (2) Mr. Pelullo’s appeal was moot because, by reconfiguring Lot 1A into a larger lot, a small “tail” section of the reconfigured lot extended beyond 125 feet and thus satisfied the lot depth requirement. Both arguments were rejected by this court, which concluded that the building permit was based on an invalid interpretation of lot depth and, without any other zoning relief, must be annulled. That decision was recently affirmed by the Appeals Court. Pelullo v. Croft, 86 Mass. App. Ct. 908 , 910 (2014) (“Neither the building inspector nor the board explained why a diagonal measurement of lot depth was consistent with the ordinary meaning of that term, and failed to offer any reasoned basis for measuring lot depth based on a diagonal line.”)

On April 17, 2013 Mr. Pelullo sent a letter to the Building Inspector requesting that he enforce the zoning bylaw in accordance with this court’s decision by ordering the removal of the Wares’ home. The Building Inspector declined to issue such an order, and Mr. Pelullo appealed to the Zoning Board.

In May 2013, the Wares applied for a variance from the 125 foot lot depth requirement. The Zoning Board held a hearing on both the enforcement action and the Wares’ variance request on June 24, 2013. On July 16, 2013, the Zoning Board filed its decisions with the town clerk denying Mr. Pelullo’s enforcement action (Case #2013-020) and granting the Wares a variance from the lot depth requirement (Case #2013-019). This appeal followed.

The parties cross-moved for summary judgment on the validity of the variance. As previously noted, I ruled that the variance was improperly granted and would be invalidated, or other appropriate relief ordered, if the plaintiff had standing to challenge it. See Summary Judgment Mem. & Order at 9. Trial was thus held on the issue of standing.

At trial, Mr. Pelullo testified that he visits his parents, both in their nineties, approximately once or twice a week, and occasionally stays overnight at the home. These visits continue when Mr. Pelullo’s parents have gone to Florida for the winter, generally from early December to early April. On the eastern side of the Pelullo home, facing Upland Road and directly across the street from the Wares’ home, are the Pelullos’ master bedroom and master bath, and another bathroom and bedroom toward the front of the house. Each room on that side of the house has a large window looking out on Upland Road. The Ware home is approximately 100 feet away from these windows.

Since the Wares have moved into their home, Mr. Pelullo testified that there has been an increase in traffic on Upland Road. This includes a Natick garbage truck that makes weekly stops at the Ware home, and a recycling truck that comes every two weeks. An oil truck also makes periodic deliveries in the winter. These trucks have occasionally blocked access on Upland Road and the garbage truck has increased noise in the neighborhood since it beeps as it backs down Upland Road to get back onto Oxford Street. The mail truck also stops at the Ware home six days a week. Mr. Pelullo’s parents usually sleep from 10:00 p.m. to 8:30 a.m. and the noise and vibration from these trucks disturbs that sleep when they come earlier than 8:30 a.m.

There is also noise from the Wares’ lawn maintenance service, which comes once a week during the afternoon in the summer months to cut the Wares’ lawn.

Mr. Pelullo testified that the interior lights from the Ware home do not necessarily bother him, and the two exterior lights near the Wares’ front door have only bothered him “a few times.” But when the Wares or their visitors exit their driveway in the evening, Mr. Pelullo described how the headlights from these vehicles shine directly onto the windows on the eastern side of the Pelullo home and illuminate the interior bedrooms and bathrooms. Mr. Ware himself acknowledged this during his testimony. As Mr. Ware’s car comes out of his driveway in the evenings, its headlights travel across the eastern side of the Pelullo home as he turns left onto Upland Road. Mr. Ware typically makes two trips in a given day, once going to and from work and then a second trip, usually for groceries or other errands, after he returns home from work around 6:30 p.m. Mr. Ware’s headlights also shine on the eastern side of the Pelullo house when he returns home, turning left onto Upland Road from Oxford Street. Headlights from visitors’ cars leaving the Wares’ driveway are an additional intrusion. The effect of the headlights is particularly pronounced because there is little artificial light in the neighborhood from other sources such as streetlights. Mr. Pelullo testified that the headlights have been an ongoing disturbance.

Additional facts are discussed in the Analysis below.

Analysis

The test for standing, and the standards by which it is judged, are the familiar ones. “Only a ‘person aggrieved’ may challenge a decision of a zoning board of appeals.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); G.L. c. 40A, §17. “Individual…property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989). “The right or interest asserted by a plaintiff claiming aggrievement must be one that the Zoning Act is intended to protect, either explicitly or implicitly.” 81 Spooner Road LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012).

To assert a plausible claim of injury to such an interest, a “plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. “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.

Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005).

Abutters such as Mr. Pelullo have a rebuttable presumption of aggrievement. See 81 Spooner Road LLC, 461 Mass. at 700. That presumption can be rebutted in two ways. First, a defendant may show that the rights allegedly aggrieved are not interests protected by G.L. c. 40A or the local zoning ordinance. This rebuts standing because “[a]n abutter can have no reasonable expectation of proving a legally cognizable injury where the Zoning Act and related zoning ordinances or bylaws do not offer protection from the alleged harm in the first instance.” Id. at 702; Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35 (2006). Second, where a plaintiff has alleged harm to an interest protected by G.L. c. 40A, the defendant can rebut the presumption by producing credible evidence to refute the presumed fact of aggrievement. This can be done by presenting evidence showing the aggrievement is either unfounded or de minimus. Standerwick, 447 Mass. at 35-36. Once rebutted, the plaintiff must prove his standing by “establish[ing] — by direct facts and not by speculative personal opinion — that his injury is special and different from the concerns of the rest of the community.” Id. at 33.

In my Summary Judgment Mem. & Order, I ruled that Mr. Pelullo’s alleged harms— increased noise, artificial light and a corresponding loss of privacy—are to property interests implicitly protected by the Natick zoning bylaw. See Section 100, Natick Zoning Bylaw (“to preserve and to promote the life, health, safety, morals, convenience, and welfare of the townspeople, to lessen the danger from fire…to protect real estate from damaging uses of adjacent property and to further the social and economic prosperity of the community…”). I now reaffirm that finding.

At the summary judgment stage, the defendants submitted various affidavits that challenged Mr. Pelullo’s presumption of standing. These affidavits, which in effect contend that any impacts from the Ware property are de minimus and insufficient to confer standing, created issues of material fact that precluded entry of summary judgment. Having thus facially rebutted the presumption of standing, the burden remained on Mr. Pelullo to prove standing through credible evidence, leaving the question of standing to be decided on “all the evidence with no benefit to the plaintiffs from the presumption.” [Note 6] Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957).

“Aggrievement requires a showing of more than minimal or slightly appreciable harm.” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121 (2011). The adverse effect “must be substantial enough…such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy.” Id. at 122. Mr. Pelullo’s claims regarding traffic and noise, while credible, are not substantial enough to confer standing. The garbage, recycling, and oil delivery trucks travel by the Pelullo home infrequently. The garbage truck comes once a week, the recycling every other week, and the oil truck only three or four times each winter. The garbage truck arrives between 8:00 and 8:30 a.m. around the time when Mr. Pelullo’s parents usually get out of bed. This time frame is confirmed by time-stamped photos taken by Mr. Pelullo, which shows the garbage truck at 8:10 a.m. on April 17, 2014, 8:32 a.m. on April 24, 2014, and 8:17 a.m. on May 22, 2014. The other trucks come after the Pelullos have gotten out of bed. The recycling truck comes later in the morning around 10:45 a.m. The mailman arrives in the afternoon. These trucks would be in the neighborhood picking up trash, recycling, and delivering mail during these times even if the Ware home had never been built. Although Mr. Pelullo has occasionally seen these trucks block Upland Road for a brief period of time, there was no evidence that they ever prevented him or his parents (whose driveway is off Oxford Street, not Upland Road) from accessing Upland Road when needed. I therefore find and conclude that the impact of these vehicles on the Pelullo property is de minimus. See Kenner, 459 Mass. at 124.

Mr. Pelullo’s complaint about the noise from the Wares’ lawn service is also insufficient. Again, the lawn service is not a daily occurrence. It comes once a week in the summer months in the latter part of the morning around 11:00 a.m. I have viewed the Pelullo property and surrounding neighborhood on two occasions. It is a quiet, residential neighborhood with single- family homes on small lots. All have lots that are mowed. Mr. Pelullo’s concern centers only on the Wares’ activity, which does not affect him in a way that is any different from the activities of his other neighbors.

The Wares have occasionally had guests and parties at their house, but again this activity does not substantially impact Mr. Pelullo or his parents except for the impacts from their headlights, discussed below. There is no evidence that the Wares’ guests have ever blocked Upland Road or caused undue noise in the neighborhood. The Wares have a nine-month old son, and most of these social gatherings have been family functions. Mr. Ware recalled having people over for a baby shower, his son’s baptism, and a Christmas party. Although the Ware lot has insufficient lot depth, it is located approximately 100 feet from the Pelullo home, further away than other houses in the neighborhood that abut Mr. Pelullo such as 37 Oxford Street (80 feet away), 35 Oxford Street (95 feet away), and 1 Peterson Road (20 feet away).

Since Upland Road was paved, Mr. Pelullo has observed vehicles driving down the road, which they did not do when Upland Road was in its unimproved condition. Mr. Pelullo described one such occurrence when a lost elderly couple traveled up and down Upland Road. He testified that this unrecognized vehicle, driving back and forth, frightened his parents and that such traffic occurs frequently (“more lost traffic than you can realize”). Based on my observations at the views, I do not find this credible. Oxford Street is not major thoroughfare in the town of Natick. It is a quiet, residential street, and any cars that mistakenly turn on Upland Road are likely infrequent. Moreover, as this court ruled in Pelullo v. H&R Development, H&R, as an easement holder, had the right to improve Upland Road for vehicular use. See Pelullo v. H&R Development LLC, 21 LCR 33 , 36 (2013). Those improvements are valid and legal, and the Pelullos’ access to the rear of their property, which was the main issue in dispute in Pelullo v. H&R Development, has since been restored.

Mr. Pelullo, however, has shown actual aggrievement, and thus proven his standing, with respect to the headlights from the Wares’ vehicles and those of their evening-hour visitors that shine into the Pelullo bedrooms when exiting the driveway. This is a direct impact that occurs at least nightly, and would not occur if the house had not been built. Unlike the lawn mowers, garbage, recycling, and mail trucks, which are all in the neighborhood regardless of the Wares, the headlights that shine directly into the Pelullo home are a specific harm that only arises from the Ware property. Even when the shades are drawn, as Mr. Pelullo testified, the headlights illuminate the bedrooms and bathrooms on the eastern side of the house. The brightness of these lights, plainly evident in the photographs admitted into evidence at trial, certainly interferes with the use and enjoyment of the Pelullo home.

Conclusion

For the foregoing reasons, I find that Mr. Pelullo has established his standing to challenge the variance, which I have already concluded in the Summary Judgment Mem. & Order is invalid. This case will now proceed to a second stage to address the appropriate remedy. The parties shall contact the sessions clerk to schedule a status conference at their earliest convenience.

SO ORDERED.

exhibit 1

exhibit 2