MISC 14-481559

July 30, 2014

Norfolk, ss.




In this action, brought under G.L. c. 40A, §17, plaintiff M & K Partners LLC appeals a decision by the Stoughton Planning Board to grant site plan approval to the Van Dam defendants [Note 1] for the construction of an industrial building on property directly abutting M & K’s. [Note 2] The Van Dams, joined by the board, have moved to dismiss the complaint, contending that this court lacks jurisdiction over the appeal because, in their view, the appeal is premature. A proper appeal, they say, can only come from the grant of a building permit. [Note 3]

The Van Dams also assert two other grounds for dismissal. The first is a contention that M &K is not sufficiently “aggrieved” to have G.L. c. 40A, §17 standing, and the second an argument that their site plan application is “petitioning activity” protected by the anti-SLAPP statute, G.L. c. 231, §59H, and M & K’s appeal a violation of those protections.

For the reasons more fully set forth below, the motion to dismiss is DENIED. The Stoughton zoning bylaw validly requires immediate appeal of the site plan decision, M & K’s standing to bring the appeal presents factual issues that cannot be resolved on a motion to dismiss, and G.L. c. 231, §59H provides no basis for the dismissal of M&K’s claims.


The Site Plan Decision Was Properly Appealed Pursuant to G.L. c. 40A, §17

Under Article XIV (Site Plan Review) of the Stoughton zoning bylaw, “the appeal of any decision of the Planning Board hereunder shall be made in accordance with the provisions of MGL c. 40A, §17.” Bylaw, §200-87(I) (emphasis added). The meaning of a bylaw is determined by the ordinary principles of statutory construction. Shirley Wayside Ltd. Ptnrshp. v. Bd. of Appeals of Shirley, 461 Mass. 469 , 477 (2012). “We first look to the statutory language as the principal source of insight into legislative intent [and] when the meaning of the language is plain and unambiguous, we enforce the statute according to its plain wording unless a literal construction would yield an absurd or unworkable result.” Id. (internal citations and quotations omitted). Here, the bylaw language is plain and unambiguous. [Note 4] Any site plan decision by the board is immediately appealable to court in accordance with the provisions of G.L. 40A, §17.

The defendants contest the validity of such a bylaw, contending it runs counter to prior case law regarding site plan decisions. In those cases, in certain instances, a site plan decision was determined to be immediately appealable to court. See, e.g. Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17 , 21-22 (1995). In others, courts ruled that an appeal was required to await the issuance of a building permit, and the appeal was from that permit. See, e.g., DuFault v. Millenium Power Partners LP, 49 Mass. App. Ct. 137 , 139 (2000). Those rulings, however, occurred in situations where the town bylaw made no provision for site plan appealability. In the absence of such a bylaw provision, the distinction tended to turn on whether the site plan decision had a discretionary element. If the reviewing board had discretion to refuse approval, the decision was considered in the nature of a special permit and immediately appealable pursuant to c. 40A, §17. See Quincy. If there was no discretion — if the use was “as of right” and the most the board could do was impose reasonable conditions — review was held to await the building permit. See DuFault. It is not always clear, however, in which category a particular site plan review process falls, and errors are unforgiving. An appeal not timely taken is an appeal forever lost. The result has been the filing of immediate appeals in any situation at all arguable, and the waste of both private and municipal resources when a court finds the appeal premature. There are also advantages, to both the parties and the town, to knowing whether a site plan approval will survive scrutiny before undergoing the additional effort and expense associated with a building permit. Some towns have thus responded by adopting bylaws providing for immediate appeal of site plan decisions in either situation. Stoughton is one of them. As noted above, its bylaw provides for an immediate G.L. c. 40A, §17 appeal of any site plan decision.

The validity of such a bylaw was foreshadowed in DuFault itself which, in holding that the issuance of a building permit was necessary under the Tewksbury “site plan” bylaw before an appeal could be taken, was careful to note that the bylaw did not contain an “appeal” provision. DuFault, 49 Mass. App. Ct. at 140. It has now been recognized in Wildstar Farm LLC v. Planning Bd. of Westwood, 2012 WL 468226 (Mass. App. Ct. 2012) (Rule 1:28 disposition, unpublished), where the Appeals Court held:

Because the question of exhaustion of remedies [which the court found to be the reason why non-special permit-type site plan decisions are not “ordinarily” immediately appealable] is not itself jurisdictional, we think that in an unusual case such as this where a town has expressly instructed through its by-law that exhaustion will not be required — which is what we read the town to have done through this by-law provision — it may not later argue in an appeal brought by an aggrieved party that in fact exhaustion of the town’s own administrative remedies is required. The plaintiffs were entitled to rely on this by-law, and should not have to bear the delay and expense that the town’s attempt to repudiate it before the courts would entail. Consequently, we think that the Land Court’s exercise of jurisdiction was appropriate.

2012 WL at *1. Following Wildstar Farm and other decisions of this court, I find and rule that a town may adopt a bylaw providing for immediate appeal of a site plan review decision, even if it is of the “non-discretionary” type otherwise not appealable until issuance of a building permit, and that this is such a bylaw. See Bourne v. Sudbury Zoning Bd. of Appeals, Case No. 10 Misc. 434334 (KCL), Mem. & Order on Defendant Northwood at Sudbury Condominium Trust’s Motion to Dismiss at 3-5 (Apr. 12, 2012) (Long, J.); Pandya v. Brushwood Nominee Trust, Case No. 14 Misc. 481861 (HMG), Order Denying Motion to Dismiss at 4-5 (Jul. 25, 2014) (Grossman, J.). M & K’s appeal to this court was thus properly taken. Indeed, under the bylaw, an immediate appeal was required or otherwise would have been lost.

The Van Dams’ Motion to Dismiss Based on M & K’s Asserted Lack of Standing is Denied at this Time

The Van Dams (but not the board) also argue that M & K lacks standing to bring a c. 40A, §17 appeal because it has not shown sufficient “aggrievement.” That argument fails on the present record.

Only a “person aggrieved” by a board decision has standing to appeal. [Note 5] G.L. c. 40A, §17. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106 , 107 (1995); Green v. Board of Appeals of Provincetown, 404 Mass. 571 , 574, 536 N.E.2d 584 (1989). ). “A plaintiff qualifies as a ‘person aggrieved’ upon a showing that his or her legal rights will be infringed by the board’s action. To show an infringement of legal rights, the plaintiff must show that the injury flowing from the board’s action is special and different from the injury the action will cause the community at large.” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (citations omitted). Furthermore, the injury must be “to a specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 30 (2006) (citing Circle Lounge & Grille, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 431 (1949)).

Site plan review is not explicitly recognized in the Zoning Act, G.L. c. 40A, but has been found to be a permissible regulatory tool for “controlling the aesthetics and environmental impacts of land use.” Osberg v. Planning Bd. of Sturbridge, 44 Mass. App. Ct. 56 , 57 (1997). Here at least one of the impacts alleged by M & K as directly affecting its property relates to drainage — an environmental issue, specifically addressed by the site plan bylaw. Bylaw §200- 86(K) (“Adequate on-site drainage shall be provided to handle peak stormwater runoff, and stormwater runoff shall not adversely affect abutting properties or the Town drainage system….”).

M & K is a direct abutter. Under G.L. c. 40A, §17, an abutter is presumptively a “person aggrieved.” G.L. c. 40A, § 11; Marashlian, 421 Mass. at 721. However, a defendant may challenge the plaintiff’s standing by “offer[ing] evidence ‘warranting a finding contrary to the presumed fact.’” Standerwick, 447 Mass. at 33 (quoting Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003)). [Note 6] Once the presumption has been rebutted, the issue of standing is “decided on the basis of the evidence with no benefit to the plaintiff from the presumption.” Id. (quoting Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992)); Marashlian, 421 Mass. at 721.

Here, the Van Dams have not offered any evidence to rebut M & K’s presumption of standing. In effect, they have done nothing more than assert that it does not exist. With the presumption in place, they must do more. They must present admissible evidence, from experts, [Note 7] to rebut the alleged drainage impacts. [Note 8] Once the presumption has been rebutted with such evidence, the plaintiff must respond with its own admissible evidence, again from experts, and the question of whether a plaintiff has proved standing becomes a question of fact for the court. Marashlian, 421 Mass. at 721; Butler, 63 Mass. App. Ct. at 440. Note, however, that this “does not require that the factfinder ultimately find a plaintiff’s allegations meritorious.” Marashlian, 421 Mass. at 721. “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.” Butler, 63 Mass. App. Ct. at 440-41. The plaintiff is only required to “put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. As the Appeals Court has observed:

[C]redible 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. When the judge determines that the evidence is both quantitatively and qualitatively sufficient, however, the plaintiff has established standing and the inquiry stops.

Butler, 63 Mass. App. Ct. at 441-42 (citations omitted). The motion to dismiss for lack of standing is DENIED at this time. If and when it is renewed, it will be addressed in the context of the evidence in accordance with this standard.

G.L. c. 231, §59H Does Not Require Dismissal of this Case

The Van Dams’ final argument is a contention that G.L. c. 231, §59H applies to this case, and that it mandates its dismissal. They are incorrect.

G.L. 231, § 59H (the so-called “anti-SLAPP” statute) [Note 9] provides, in relevant part

In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party’s exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss . . .The court shall grant such special motion, unless the party against whom such special motion is made shows that: (1) the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts caused actual injury to the responding party. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

* * * *

If the court grants such special motion to dismiss, the court shall award the moving party costs and reasonable attorney’s fees, including those incurred for the special motion and any related discovery matters. Nothing in this section shall affect or preclude the right of the moving party to any remedy otherwise authorized by law.

As used in this section, the words “a party’s exercise of its right of petition” shall mean any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.

The statute was intended as “a quick remedy for citizens who are targeted by frivolous lawsuits based on their government-petitioning activities,” Moriarty v. Mayor of Holyoke, 71 Mass. App. Ct. 442 , 445 (2008), and the “typical mischief” it was meant to address was “lawsuits directed at individual citizens of modest means for speaking publicly against development projects.” Duracraft, 427 Mass. 156 , 161. “A SLAPP suit generally has no merit; the plaintiff's objective is not to win, but to ‘use litigation to intimidate opponents' exercise of rights of petitioning and speech,’ and ‘to deter common citizens from exercising their political or legal rights or to punish them for doing so.’” Wenger v. Aceto, 451 Mass. 1 , 4 (2008) (quoting Duracraft). Here, the parties seeking SLAPP protection (the Van Dams and their affiliated business entities) are not “common citizens” of modest means, but rather a large, commercial enterprise seeking to develop a property over the protests of its neighbor — almost a complete inversion of the statutory intent. M & K, of course, is not an “individual citizen of modest means” either. Whether these facts alone take this case outside the statutory reach is an interesting question. See Duracraft at 163 (court saw “no evidence” that statute was intended to reach suits between corporate competitors involved in other ongoing litigation); Kobrin v. Gastfriend, 443 Mass. 327 , 332-333 (2005) (statute “designed to protect overtures to the government by parties petitioning in their status as citizens…[not] those performing services for the government as contractors”); North American Expositions Co. Ltd. Ptnrshp. v. Corcoran, 70 Mass. App. Ct. 411 , 422-423 (2007) (holding, inter alia, that the statements at issue fell outside the scope of G.L. c. 231, §59H because they were “made in a business context and were commercially motivated”). I need not and do not decide that question, however, because the Van Dams’ §59H claim fails for other reasons.

In determining whether the moving party is entitled to dismissal of the claims against it under the anti-SLAPP statute, a burden-shifting analysis is applied. “As a threshold matter, the party seeking dismissal (the defendant) must demonstrate, through pleadings and affidavits, that the plaintiff’s claims are based on petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.” Wenger, 451 Mass. at 5 (internal citations and quotations omitted). “If this showing is not made, the special motion must be denied.” Id. “If the showing is made, then the burden shifts to the nonmoving party (the plaintiff) to demonstrate, again by pleadings and affidavits, that the moving party's petitioning activities were ‘devoid of any reasonable factual support or any arguable basis in law’ and the petitioning activities ‘caused actual injury to the responding party.’” Id. (quoting G.L. c. 231, § 59H). “If these showings are made, by a preponderance of the evidence, then the special motion to dismiss must be denied. If that standard is not met for one or both elements, the special motion to dismiss must be allowed.” Id.

The Van Dams fail to clear the first hurdle. They claim that this action is groundless, “and a mere pretext to intimidate and harass the Van Dams as the result of the Norfolk Superior Court Matter” (a trespass action brought by the Van Dams against M & K). [Note 10] But they have failed to show that it is groundless or, more precisely, that it has “no substantial basis.” Wenger, 451 Mass. at 5. As noted above, as a matter of law, M & K is presumed to have standing to bring it, and the Van Dams have done nothing to rebut that presumption. At least some of the objections raised in this appeal (e.g., those related to drainage and, perhaps, to process) are facially valid claims which, if proven, would warrant relief — a remand to the board for further explanation or action, and perhaps substantial changes to the site plan. The Van Dams have not submitted any admissible evidence to rebut these claims. [Note 11] Their motion to dismiss under G.L. c. 231, § 59H is therefore DENIED.


For the foregoing reasons, the defendants’ motion to dismiss the plaintiff’s complaint is DENIED.



[Note 1] Arie Van Dam, DGC Highway LLC and Marie Van Dam as trustee of the 357 Page Street Realty Trust.

[Note 2] The Van Dam’s property is currently being used as a storage yard. It is zoned industrial.

[Note 3] A building permit, limited to the building foundation only, has since been issued, and M & K has filed an appeal from that decision. The issues potentially relevant to such a permit are not identical to those presented in this appeal: the site plan at issue implicates more than just the foundation, and the construction of the foundation involves building code issues beyond the scope of the site plan.

[Note 4] “A term is ambiguous only if it is susceptible of more than one meaning and if reasonably intelligent persons would differ over the proper meaning. The mere existence of a disputed interpretation by the parties does not create an ambiguity. Nor does the mere existence of multiple dictionary definitions of a word, without more, suffice to create an ambiguity, for most words have multiple definitions. If the language is free of ambiguity, our responsibility is to apply its clear terms.” Suffolk Construction Co. v. Illinois Union Ins. Co, 80 Mass. App. Ct. 90 , 94 (2011).

[Note 5] A plaintiff’s lack of standing deprives the court of subject matter jurisdiction over the case. See Watros v. Greater Lynn Mental Health and Retardation Ass’n Inc., 421 Mass. 106 , 107 (1995).

[Note 6] The process of rebutting the presumption does not shift the burden of proof to the defendant, however. Standerwick, 447 Mass. at 35. The burden of proving standing still remains with the plaintiff. Id.

[Note 7] The drainage issue apparently centers on the adequacy of the Van Dams’ proposed stormwater management measures, a subject requiring expert testimony. See Commonwealth v. Canty, 466 Mass. 535 , 541-542 (2013) (lay opinion admissible “only where it lies within the realm of common experience” and cannot be based on scientific, technical or other specialized knowledge).

[Note 8] The court finds the facts de novo in a G.L. c. 40A, §17 proceeding based solely on admissible evidence. See Roberts v. Southwestern Bell Mobile Systems Inc., 429 Mass. 478 , 485-486 (1999). Neither the board decision itself nor the factual findings contained in that decision have any evidentiary weight, see Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972), and the unsworn “Wetland Investigation” attached to the Van Dam’s moving papers does not meet the standards of admissibility, see Mass. R. Civ. P. 56(e).

[Note 9] The acronym “SLAPP” stands for “Strategic Lawsuit Against Public Participation.” Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 , 160 n.7 (1998).

[Note 10] Defendants Arie Van Dam, DGC Highway LLC and Marie Van Dam’s Memorandum of Law in Support of Their Motion toDismiss at 6 (Mar. 3, 2014).

[Note 11] See n. 8, supra.