On February 1, 2012, the Salem Zoning Board of Appeals (ZBA) issued its Decision granting BHCM Inc. d/b/a Brewer Hawthorne Cove Marinas application for a variance to construct a new 10,000 square foot boat repair facility at their marina property in the city of Salem, Massachusetts. The variance granted relief from front, rear, and sideyard setback requirements. The proposed facility otherwise conforms in all other respects to the Salem Zoning Ordinance.
Michael Furlong and Dolores Jordan each own property in Salem near the Marina. They filed this appeal of the ZBAs Decision under G.L. c. 40A, § 17, alleging that they are aggrieved and seeking to annul the Decision as legally untenable, arbitrary and capricious. For the following reasons, I find that Ms. Jordan lacks standing to challenge the Decision and her claims are therefore DISMISSED for lack of subject matter jurisdiction. Mr. Furlong successfully demonstrated his standing to maintain this appeal. On the merits, I find that the evidence at trial establishes that the Decision meets the standards for issuance of a variance. The ZBs Decision is AFFIRMED, and Mr. Furlongs claims are DISMISSED.
Michael F. Furlong and Dolores T. Jordan [Note 1] filed their complaint on February 17, 2012 naming as defendants the members of the ZBA and BHCM, Inc. d/b/a Brewer Hawthorne Cove Marina. The complaint contains one count, an appeal of a variance pursuant to G.L. c. 40A, § 17. Brewer filed its answer on March 23, 2012.
A case management conference was held on March 27, 2012. A pretrial conference was held on April 22, 2013. A view was taken on September 11, 2013, and a three-day trial was held on September 11 and 12, 2013 and December 3, 2013. The court heard testimony from Thomas Clausen, Dolores Jordan, Michael Furlong, Noah Flaherty, Derek Bloom, and Robert Murphy. Exhibits 1-35 were marked. Brewers Motion to Dismiss Pursuant to Mass. R. Civ. P. 41(b)(2) was denied on December 3, 2013.
Plaintiffs Michael F. Furlong and Dolores T. Jordans Proposed Findings of Fact and Conclusions of Law and Plaintiffs Michael F. Furlong and Dolores Jordans Post Trial Memorandum of Law were filed on March 3, 2014. Defendant BHCM, Inc. d/b/a Brewer Hawthorne Cove Marinas Memorandum of Proposed Findings of Fact and Conclusions of Law was filed on March 5, 2014. The court heard closing arguments on March 14, 2014 and took the matter under advisement. This Decision follows.
Findings of Fact
Based on the view, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.
1. BHCM Inc. d/b/a Brewer Hawthorne Cove Marina (Brewer) owns property in Salem, Massachusetts, consisting of approximately 72,000 square feet, known as 8 White Street, 10 White Street, and 57 Turner Rear Street and shown as assessors parcels 41-0283-0, 41-0284-0, and 41-0298-0 (Property), by a deed dated September 30, 2010 and recorded in the Essex South Registry of Deeds (registry) at Book 29838, Page 552. Exhs. 1, 4, 13; Tr. I-212, II-47-48.
2. The Property sits on Salem Harbor. The lot is not rectangular; it has at least 25 different sides, including an earthen wharf that extends into the harbor. It abuts the water on five of those sides. It has frontage on White Street and Turner Rear Street. The frontage on White Street is narrow and is at the end of White Street. The frontage on Turner Rear Street is also narrow, and is used only for emergencies or overflow, not for access by boats. View; Exhs. 1, 7; Tr. I-212, II-159-160.
3. The Property is abutted by the harbor on the east. It is abutted by residential dwellings on the north, west, and south, and a municipal parking lot on the north. The parking lot is associated with the ferry terminal farther to the north. White Street connects to Derby Street, a one-way street that is a main thoroughfare in the neighborhood. There is a residential building owned by plaintiff Dolores T. Jordan on the southeast corner of White Street and Derby Street; there is a VFW hall on the northeast corner. The House of Seven Gables is across Turner Street from the Property. Most of the buildings around the Property and along Derby Street are older residential buildings, some with businesses, that predate zoning; most are on undersized lots and have little or no setback. View; Exhs. 1, 4, 9, 16; Tr. I-89-90, 105, 116, 156-157, II-57-58.
4. The Property is located in the Industrial (I), Residential Two-Family (R-2), and Business Neighborhood (B-1) zoning districts under the Salem Zoning Ordinance and Zoning Map (Ordinance). The line between the R-2 district and the I district runs across the Property, from the harbor to one of the western boundaries, approximately 1/4th of the way up from the most southerly bound of the Property. The Property is subject to Chapter 91 DEP license plan 1261, dated December 22, 2009, and recorded in the registry at Book 29204, Page 209. Exhs. 1, 2, 3, 7, 31; Tr. II-204.
5. The Ordinance requires a minimum front, side, and rear yard setback of 30 feet in the Industrial district. In the R-2 district, the Ordinance requires a minimum front yard setback of 15 feet, a minimum side yard setback of 10 feet, and a minimum rear yard setback of 30 feet. The Ordinance provides that where a district boundary line divides a lot of record . . . , the regulations for the less restricted portion of such lot shall extend not more than thirty (30) feet into the more restricted portion, provided the lot has frontage on a street in the less restricted district. The Property has frontage both on White Street in the Industrial district and Turner Street in the R-2 district. Exh. 2 at §§ 2.4, 4.1.1; Exhs. 1, 3, 7; Tr. II-204.
6. The Property is improved with an existing marina/boatyard operation with associated permanent and temporary structures (marina). When Brewer purchased the Property in 2010, the marina had two temporary trailers and two containers which were removed. The current structures on the Property include a headhouse containing showers, laundry and a bathroom, with an attached deck area; a pressure washer shed; a marine travelift used for moving boats that are all on the harbor side of the Property near the boat slips; a 26 by 60 temporary Quonset hut in the middle of the Property in the parking area; and a small dock house used as an office space near the White Street entrance. There was a building in the middle of the Property, near where the Quonset hut is now, that burned down in approximately 2008. Another building, located on the western edge of the Property, was torn down by Brewer after it bought the Property, leaving an open area. A large portion of the Property is open, paved area. There are approximately 115 parking spaces on the Property during the summer months. The Property is serviced by existing infrastructure, including sewer, drainage and water. View; Exhs. 1, 7, 14, 15, 16, 22, 23; Tr. I-100-103, 143-144, 198-199, 201-202, 210, II-17, 50, 54.
7. Brewer operates the marina. Members of the marina use it to launch and remove their boats, and to keep their boats moored at the moorings and slips that are available. The marina has 140 moorings and 112 slips. [Note 2] During the boating season, roughly from April to October, the marina operates seven days a week, 8:00 am to 10:00 pm. Members come to the marina, park there, and then go out to their boats. In the winter, the marina operates Monday through Friday, 7:30 am to 5:00 pm, and Saturday, 8:00 am to noon; in that time, approximately 10 to 12 members visit the marina per week. During the winter, approximately 150 boats are stored on the marina property, approximately 70 boats leave by water and return by water in the spring, and 20 leave and return on trailers driven down White Street. Brewer also repairs members boats on the Property, conducting the repairs either outdoors or inside the Quonset hut. The Quonset hut does not mask the noise of the repairs. View; Exhs. 1, 14, 15, 16, 25; Tr. I-103, 154-156, 175-176, 199, 202-205, II-5, 11-12, 17, 99, 104-106, 157.
8. During the summer, the parking area on the Property has less than 30 cars during the week, but is full during the weekend. The marina directs overflow parking to the municipal parking lot for the ferry terminal just north of the Property, at the end of Blaney Street next to Mr. Furlongs parking area for his condominium. Tr. I-210-211.
9. Brewer seeks to construct a building with a height of 39 feet, 9 inches and a length of approximately 163 feet, 3 inches to be used as an indoor facility for the repair of boats and for its office (Building). The Building would replace the Quonset hut in which it currently repairs boats and the existing dock house used as its office. Instead, boats would be repaired inside the Building. It would also allow Brewer increased indoor storage of equipment such as mooring pennants. Brewer wants to locate the new Building at the northern end of the Property near its White Street frontage, with only minimal setback. No boats will be stored in the Building; rather, it would reduce the outdoor storage of boats on the Property by 8-10 boats. Exhs. 1, 9, 15; Tr. II-6-7, 15-16, 20-21, 40-41, 79-80, 115, 153-154.
10. As proposed, the Building would have a steel frame, with outside walls of corrugated steel with foam insulation. The Building would have large sliding doors on its southern side, facing the marina. There would be no doors to the north or east, except for emergency doors. The area of the marina around the doors would remain clear of stored boats. The roof is pitched, and slopes down, with some sections of the Building having a lower roof height. Exhs. 7, 8; Tr. II-7-8, 20, 186-190, 196-198.
11. One of the reasons that Brewer wishes to locate the Building at the northern edge of the Property is to provide room for the safe operation of the marine travelift. The travelift is used year-round. It lifts boats from the water and carries them to where they will be repaired. It repeats the process to put the boats back in the water. These operations require the travelift to turn in a radius equal to 1.4 times the length of the boat. Because there are significant blind spots for the operator of the travelift, a certain amount of open area is required for its safe operation, especially given that marina members also use the marina to access their boats. Locating the Building on the northern edge of the Property would provide an open area for operation of the travelift away from where cars are parked. Exh. 14; Tr. II-28-35, 74-79, 92-94, 147-148, 163-164.
12. If the Building is built as provided in the variance, there will be 115 parking spaces on the Property, along with a travel lane from running from the White Street entrance to the travelift and head house. Under this plan, the White Street entrance would be widened. Exh. 7; Tr. II-171-174.
13. Brewer has no information with respect to the soil conditions at the Property or at neighboring properties, except that the Property is filled tidelands. Tr. II-59-60, 95-97, 125, 129.
14. The topography and grade of the Property and neighboring properties is similar; it is flat or slopes slightly to the water. View; Tr. II-61-62, 97-98, 130.
15. While some neighboring lots have unusual shapes, none has as many sides as the Property. The shape of the Property makes it difficult to place the Building in a location that is within the industrially-zoned portion of the Property and that complies with the setback requirements. Notwithstanding this difficulty, the Building could be placed on the Property in a way that complies with setback requirements. Such a location would be less ideal for operation of the marina than the location of the Building under the variance. View; Exhs. 7, 9, 17; Tr. II- 38-39, 62-63, 66-67, 123-124, 126-128, 132-140, 164-168, 176-182.
16. However, placing the Building in a location within the industrially-zoned portion of the Property in which it met the setback requirements would interfere with the safe use of the marine travelift and create a substantial safety hazard for persons and property on the marina. There would be little area for the travelift to turn around safely; there would be substantial blind spots in which the operator of the travelift would not be able to see marina customers, and there would be increased risk of damage to boats. View; Exhs. 7, 14; Tr. II-28-35, 92-94, 147-148, 163-164.
17. On October 26, 2011, Brewer filed an application with the ZBA seeking a variance under § 9.3.2 of the Ordinance and G.L. c. 40A, § 10, from various setback requirements because the Building as proposed would have a front and side yard setback of five feet and a rear yard setback of 1.6 feet. Specifically, Brewer sought relief from the following requirements of §4.0 of the Ordinance: (a) minimum front yard setback of 30 feet in the I district, (b) minimum rear yard setback of 30 feet in the I district, and (c) minimum side yard setback of 30 feet in the I district. Exhs. 1, 2 at §§ 4.1.1 & 9.3.2, 5, 7; Tr. II-112-113.
18. The ZBA held a duly noticed public hearing on Brewers application on November 16, 2011; the hearing was continued to January 18, 2012. After the public hearing on January 18, 2012, the ZBA voted to approve Brewers application for a variance. Exh. 1.
19. The ZBAs Decision, approving the variance for the Property, is dated February 1, 2012 and was filed that day with City of Salem Clerks office. Exhs. 1, 6.
20. Dolores Jordan lives at 97 Derby Street, Salem (97 Derby Street or the Derby Street property). She has lived there most of her life; the building was owned by her father before her. 97 Derby Street is located at the southeast corner of Derby Street and White Street, at the other end of White Street from the Property. It consists of a three-story residential building, built in 1772, with a small building adjacent to it. The rear of the building faces the harbor. Between the 97 Derby Street building and the harbor is a small yard and parking area for 97 Derby Street, a condominium building, and the Property. The building sits at the sidewalk of Derby Street and White Street, with little or no setback. View; Exhs. 4, 7, 9; Tr. I-89-90, 92-95, Tr. II-191.
21. Ms. Jordan occupies the second and third floors of the building. She enters her second floor unit from the rear of the building by walking up a set of outside stairs to a porch. She enters to the kitchen. On the second floor of the unit are the kitchen, a bedroom, a living room, a bathroom and a computer sitting room. View; Tr. I-95.
22. Between the Derby Street property and the Property is another parcel. It is a former industrial building that is now condominiums. At the time the building was developed as condominiums, the developers reached an agreement with Ms. Jordan. They agreed to remove part of the existing building closest to White Street in exchange for building a third story on the building and gaining some parking. The result was that 97 Derby Street has a partial view past this condominium building and across the parking lot of the Property to the harbor. To the right of this view corridor is the condominium building; to the left is the existing office building for the marina and the trees surrounding the building. View; Tr. I-96-99.
23. Michael Furlong lives in a first-floor one-bedroom condominium unit at 4 Blaney Street, Salem (4 Blaney Street or the Blaney Street property). He has lived there since 2007. His condominium building is a house built in 1782 and located between Blaney Street and White Street, north of the Property. The Blaney Street property on which his condominium lies is approximately 120 by 100 feet, and sits ten feet from the lot line at the rear and five feet from the sidewalk on Blaney Street and 6-10 feet from Blaney Street itself. There is parking in front of the unit which is accessed from Blaney Street; between this parking area and the harbor is a municipal parking lot for the ferry. The front of his unit faces Salem Harbor looking toward Marblehead. To the right of his unit as he looks out is the Property. View; Exhs. 4, 7, 9, 18, 19, 20, 26; Tr. I-145-149, 153, 157-158, 177-178, 180-181, 184, II-13.
24. Mr. Furlongs condominium has a front deck facing the harbor, and windows in his bedroom and living room from which he can see the harbor. The northern property line of the Property is approximately 100 feet from his condominium unit. There are no structures between his unit and the Property. He would see the Building from his deck and windows if it were constructed as allowed by the variance. View; Exhs. 7, 18, 19, 20, 24; Tr. I-149-151, 153-154, 169-170, 183-184, II-10-11.
25. Currently, marina customers often park in the municipal parking lot, especially in the spring when there are still a large number of boats stored outside at the Property. They also park on Blaney Street. This parking pattern continues through the summer boating season. On some occasions, marina customers have parked in the parking area for Mr. Furlongs condominium. Three or four times a year, Mr. Furlong is unable to leave his parking area because marina customers parked on Blaney Street have blocked the exit. Tr. I-158-162, 164.
26. If the Building is constructed as provided in the Decision, it will be 105 feet from Mr. Furlongs condominium building. The Building will be visible from Mr. Furlongs windows and deck. It will interfere with his view across the Property. The trees between his condominium and the location of the Building will do little to shield his view of the Building, especially in winter when the leaves are off the trees. View; Exhs. 8, 19, 22, 24, 25; Tr. I-168-173, 191, II-10- 11.
27. Ms. Jordan is concerned that the new Building will block her view to the water. She is also concerned that shadows from the Building will affect her. In general, she is concerned about the increased density to the neighborhood as a result of the Building. Tr. I-119-120, 127- 128, 135-136.
28. The Building would not block Ms. Jordans view to the water. Shadows from the Building would affect Ms. Jordans property only to a de minimis degree; a shadow from the Building would reach her property only at the winter solstice. View; Exhs. 10, 11, 12; Tr. II-192- 196.
29. Derby Street and White Street are both narrow. Ms. Jordan has observed cars and boat trailers using White Street to access the Property. She has observed that trucks towing large boats have difficulty making the turn from Derby Street to White Street or exiting White Street onto Derby Street, often taking up to 15 minutes to traverse White Street and make the turn. She has also observed cars and delivery trucks going to the marina park illegally on White Street, especially when the parking on the Property is full during the summer. The boat trailers and illegal parking have in the past interfered with Ms. Jordans ability to enter or exit her parking area. Tr. I-106-111, 115-117.
30. Ms. Jordan is concerned that as a result of the new Building, these traffic issues will get worse, because she believes the Building will result in increased business at the Property and the access from White Street is too narrow and will create a bottleneck. Mr. Furlong is concerned that construction of the Building will result in increased business at the marina which will, in turn, result in increased parking and traffic at the marina. Tr. I-117-123, 136-137, 139- 140, 186-189.
31. The Building will not result in increased traffic or business at the marina. The marina is currently at its membership capacity. No increase in trips or truck visits to the marina will result from the Building. As part of the plan for the Building, the width of the entrance to the marina from White Street would be increased from 19 feet to 28 feet. It will be slightly angled and provide better access and a wider turning radius just inside the marina. View; Exh. 7; Tr. II- 24-27.
32. Ms. Jordan is concerned that emergency vehicles will have trouble accessing the Property from White Street if the Building is constructed as allowed by the variance. Tr. I-113- 115, 137.
33. Emergency vehicles currently do not have trouble accessing the Property from White Street. The widened entrance that is planned with the Building will provide better emergency access. View; Exh. 7; Tr. II-26-28.
34. Ms. Jordan has heard noise from the Property from boat repairs being conducted outside or in the Quonset hut near the condominium property or from the boat trailers or delivery trucks going to the marina. Mr. Furlong is concerned that the new Building will cause an increase in fumes and noise from the Property. Tr. I-112-113, 174, 177, 188-189.
35. The Building would reduce noise and fumes from the Property, as boat repairs currently performed outside or in the Quonset hut would be conducted inside the Building. Tr. II- 19, 42-43.
36. Ms. Jordan is concerned that the new Building will cause the value of 97 Derby Street to decrease. Tr. I-119-120, 128-129.
37. Mr. Furlong is concerned that the new Building will cause the value of his condominium to decrease. Tr. I-174.
38. Thomas A.F. Clausen testified on behalf of the plaintiffs. He has been a licensed real estate appraiser in the Commonwealth of Massachusetts for 20 years. He has done appraisal work primarily in eastern Massachusetts, including Essex County. He has testified previously as an expert in real estate appraisal. Exh. 27; Tr. I-19-23.
39. Mr. Clausen conducted an appraisal of Ms. Jordans Derby Street property, visiting the property on August 16, 2013 and preparing the appraisal as of September 24, 2013. He conducted an appraisal of Mr. Furlongs Blaney Street property, visiting the property on August 31, 2013 and preparing the appraisal as of September 7, 2013. Exhs. 28, 29; Tr. I-30-31, 52-53, 82-83.
40. Robert D. Murphy testified for the defendant Brewer. He has been a real estate appraiser since 1987. He is a Certified General Real Estate Appraiser in Massachusetts since 1991 when the certification was first instituted. He received his Senior Residential Appraiser designation from the Appraisal Institute in 1989. He received the MAI Designation (Member Appraisal Institute) in 2001. He has done appraisal work primarily in Essex, Middlesex, and Suffolk counties. He conducts approximately 50 to 75 appraisals per year. He has testified previously as an expert in real estate appraisal. Exh. 32; Tr. III-7-13.
41. Mr. Murphy conducted an appraisal of Ms. Jordans Derby Street property, visiting the property on October 1, 2013 and preparing the appraisal dated November 6, 2013. He conducted an appraisal of Mr. Furlongs Blaney Street property, visiting the property on October 1, 2013 and preparing the appraisal dated November 6, 2013. The appraisals present a value of each property as of October 1, 2013. Exhs. 33, 34; Tr. III-5, 13-14, 39.
42. Mr. Clausen appraised the value of the Derby Street property as of July 24, 2013 at $375,000; Mr. Murphy appraised the value of the property as of October 1, 2013 at $380,000. I find that the value of the Derby Street property at the time of trial was between $375,000 and $380,000. Exhs. 28, 33; Tr. I-31-32, III-26.
43. Mr. Clausen stated in his report and testified that if the Building were built under the variance, it would reduce the value of the Derby Street property by $30,000, to $345,000. In particular, he testified, the traffic, increased density, and loss of a view to the water caused by the Building would decrease the Derby Street propertys market value. Exh. 28; Tr. I-38-40.
44. Mr. Clausen testified that for his appraisal of the Derby Street property he made an extraordinary assumption that the construction of the Building would result in increased traffic on White Street. I do not credit this assumption; rather, as discussed, I find that the Building would not result in increased traffic on White Street. Exh. 28; Tr. I-40-42.
45. Mr. Clausen also made the assumption that the Building would increase density and block Ms. Jordans view of the harbor from the Derby Street property. There is currently only a partial view of the water from the Derby Street property. If the Building were constructed as proposed, it would have little or no effect on that view. The Building would sit behind currently existing trees; it would sit at the edge of the view from the Derby Street property in a location that currently has little view; and, given the topography and height of the Derby Street property, it would not be very visible. Indeed, the Building would block more of the view and create more density if it were located in the center of the Property in compliance with setback requirements. I do not credit Mr. Clausens assumption that the Building would affect the view of the water from the Derby Street property; rather, I find that the Building would have little or no impact on the view from the Derby Street property or the density of the area with respect to the Derby Street property. View; Exhs. 19, 22, 28; Tr. I-42-45, 49-52, 67-70, 85-87.
46. Mr. Murphy stated in his report and testified that the Building would have little impact on the partial water view from the Derby Street property. He also testified that the water view has little or no market value to a multi-unit apartment building in Salem like the Derby Street property. Using both the sales comparison approach and the income approach, comparable properties in Salem show no difference in value between those with and without a partial water view. Rather, a buyer would value the Derby Street propertys rental income stream. Mr. Murphy concluded the construction of the Building would have no effect on the value of the Derby Street property. I credit Mr. Murphys testimony and report. Exh. 33; Tr. III-27-38.
47. Mr. Clausen appraised the value of Mr. Furlongs Blaney Street property as of August 31, 2013 at $225,000; Mr. Murphy appraised the value of the property as of October 1, 2013 at $190,000. Both appraisers used the comparable sales approach. Mr. Clausens comparable sales suffered from including a sale of a condominium in South Boston, which is too far from Salem to be truly comparable. Mr. Murphys comparable sales were in Salem or in nearby Beverly and each comparable had a view either of the water or of a park. I credit Mr. Murphys appraisal and find that the value of the Blaney Street property at the time of trial was $190,000. Exhs. 29, 34; Tr. I-55-57, 78-79, III-44-49.
48. Mr. Clausen stated in his report and testified that if the Building were built under the variance, it would reduce the value of the Blaney Street property by $28,900, to $196,100. He attributed this loss to the same three factors that he testified caused the decrease in value in the Derby Street property: the traffic, increased density, and loss of a view to the water caused by the Building. Exh. 29; Tr. I-57-58, 60-61.
49. As discussed, I do not credit Mr. Clausens extraordinary assumption that the construction of the Building would result in increased traffic on White Street. I find that the Building would not result in increased traffic on White Street or Blaney Street.
50. If constructed, the Building will be visible from the Blaney Street property, and block the current view from Mr. Furlongs condominium across the marina. The primary view of the water from the Blaney Street property is not, however, across the marina property; rather, it is directly across the ferry parking area. That view would not be affected by construction of the Building. I do not credit Mr. Clausens assumption that the Building would affect the view of the water from the Blaney Street property; rather, I find that construction of the Building would not affect the view of the water from the Blaney Street property. For that reason, I credit Mr. Murphys conclusion that the construction of the Building would not reduce the value of the Blaney Street property. View; Exhs. 10, 19, 20, 24, 26, 29, 34; Tr. III-46-47.
Discussion and Conclusions of Law
The two questions of law to be determined are whether Ms. Jordan or Mr. Furlong have standing to bring this challenge to the Decision, and, if either of them does, whether the Decision properly granted a variance under the standards set forth in G.L. c. 40A, § 10. As it is a threshold jurisdictional prerequisite to maintaining an action under G.L. c. 40A, § 17, Barvenik v. Alderman of Newton, 33 Mass. App. Ct. 129 , 131 (1992), I turn to standing first.
Standing. In order to have standing to challenge the issuance of the Decision granting Brewer its variance, Ms. Jordan and Mr. Furlong must be person[s] aggrieved by the Decision. G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 702-703 (1998). Persons entitled to notice under G.L. c. 40A, § 11, including abutters to the subject property and abutters to abutters within 300 feet of the subject property, are entitled to a rebuttable presumption that they are aggrieved within the meaning of § 17. G.L. c. 40A, § 11. 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass. App. Ct. 376 , 381 (2006). The Furlong Property and Jordan Property are located within 300 feet from the Marina and thus enjoy the presumption of standing.
In the zoning context, a defendant can rebut an abutters presumption of standing in two ways. First, the defendant can show that, as a matter of law, the claims of aggrievement raised by an abutter, either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect. 81 Spooner Road, LLC, 461 Mass. at 702, citing Kenner, 459 Mass. at 120. Second, where an abutter has alleged harm to an interest protected by the zoning laws, a defendant can rebut the presumption of standing by coming forward with credible affirmative evidence that refutes the presumption. Id. As Brewer has attempted in this case, the defendant may present [evidence] establishing that an abutter's allegations of harm are unfounded or de minimis. Id., citing Kenner, 459 Mass at 119120, and Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 2324 (2006). Once the presumption is rebutted, the burden rests with the plaintiff to prove standing, which requires that the plaintiff establishby direct facts and not by speculative personal opinionthat his injury is special and different from the concerns of the rest of the community. Standerwick, 447 Mass. at 33, quoting Barvenik, 33 Mass. App. Ct. at 132. At that stage, the jurisdictional issue of standing will be decided on the basis of all the evidence, with no benefit to the plaintiff from the presumption of aggrievement. 81 Spooner Road, LLC, 461 Mass. at 701.
In other words, once the presumption of standing is rebutted, the plaintiffs bear the burden to present evidence establishing that they will suffer some direct injury to a private right, private property interest, or private legal interest as a result of the Decision that is special and different from the injury the Decision will cause to the community at large, and that the injured right or interest is one that c. 40A or the Ordinance is intended to protect, either explicitly or implicitly. Id. at 700; Kenner, 459 Mass. at 120; Standerwick, 447 Mass. at 27-28; Marashlian, 421 Mass. at 721; Butler v. City of Waltham, 63 Mass. App. Ct. at 435, 440 (2005); Barvenik, 33 Mass. App. Ct. at 132-133; see Ginther v. Commissioner of Ins., 427 Mass. 319 , 322 (1998). Aggrievement is not defined narrowly; however, it does require a showing of more than minimal or slightly appreciable harm. Kenner, 459 Mass. at 121 (finding the height of the new structure to have a de minimis impact on Plaintiffs ocean view). The evidence must be both quantitative and qualitative. Butler, 63 Mass. App. Ct. at 441. Quantitative evidence must provide specific factual support for each injury the plaintiff claims. Id. Qualitative evidence is held to a reasonable person standard. Id.
Ms. Jordan and Mr. Furlong have asserted multiple harms that they contend establish their standing. I will examine each alleged harm in turn, determining whether the harm is to an interest protected by the c. 40A or the Ordinance; if so, whether Brewer has presented evidence that if believed would rebut the alleged harm; and, if so, whether, assessing all the evidence, Ms. Jordan and Mr. Furlong have proven that either of them will suffer the alleged harm.
1. Traffic and parking. Both Ms. Jordan and Mr. Furlong argue that construction of the Building will result in increased traffic on White Street and increased parking along White Street and in front of the Blaney Street property. These are interests protected by Ordinance, which provides as one of its purposes to lessen congestion in the streets. Exh. 2, Ordinance at § 1.1. Brewer has successfully rebutted any presumption of standing on this ground, and all the evidence shows that neither Ms. Jordan nor Mr. Furlong will suffer these alleged harms. I have found that there is no evidence that the construction of the Building will result in increased traffic or off-site parking. On the contrary, I have found as a fact that construction of the Building will not cause these harms. Traffic and parking is not a basis for Ms. Jordans or Mr. Furlongs standing.
2. Emergency vehicles. Ms. Jordan argues that construction of the Building will result in emergency vehicles having trouble accessing the Property from White Street. This alleged harm invokes an interest protected by the Ordinance, namely, to secure safety from fire. Id. Brewer has successfully rebutted any presumption of standing on this ground, and all the evidence shows that Ms. Jordan will not suffer this alleged harm. I have found that there is no evidence that the construction of the Building will interfere with emergency vehicles use of White Street. On the contrary, I have found as a fact that construction of the Building will not cause this harm. Interference with emergency vehicles and parking is not a basis for Ms. Jordans standing.
3. Noise and fumes. Both Ms. Jordan and Mr. Furlong argue that construction of the Building will result in increased noise and fumes from the Property as a result of the boat repairs conducted in the Building. These are interests protected by Ordinance, which provides as some of its purposes to preserve health and to prevent pollution of the environment and community blight. Id. Brewer has successfully rebutted any presumption of standing on this ground, and all the evidence shows that neither Ms. Jordan nor Mr. Furlong will suffer these alleged harms. I have found that there is no evidence that the construction of the Building will result in increased noise or fumes. On the contrary, I have found as a fact that construction of the Building would not cause these harms, but would rather lessen the noise and fumes emanating from the Property. Noise and fumes are not a basis for Ms. Jordans or Mr. Furlongs standing.
4. Property values. Both Ms. Jordan and Mr. Furlong argue that construction of the Building will cause a decrease in the value of the Derby Street and Blaney Street properties. This is an interest protected by Ordinance, which provides as one of its purposes to conserve the value of land and buildings. Id. Brewer has successfully rebutted any presumption of standing on this ground through the testimony and report of its appraiser, Mr. Murphy. Assessing all the evidence, I have found that construction of the Building will not cause a decrease in the value of the Derby Street or Blaney Street properties. Decreased property values are not a basis for Ms. Jordans or Mr. Furlongs standing.
5. View. Both Ms. Jordan and Mr. Furlong argue that the Building, if constructed under the variance, will interfere with their respective views of the harbor and the marina. View standing alone is not an interest sufficient to establish standing. Kenner, 459 Mass. at 120; Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989) (holding aesthetic views and speculative opinions are not an infringement on an individuals right). View must be specifically set forth as a protected interest in the relevant provisions of the zoning bylaw. See Martin v. Corporation of Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, 434 Mass. 141 , 146 (2001) (recognizing as a general rule view is not sufficient enough to confer standing, but that the Belmont zoning bylaws instructed the board to consider visual consequences of proposed structures); Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994). Protection of views is not among the purposes set forth in the Ordinance, Exh. 1 at § 1.1, and is therefore not an interest protected by the Ordinance. Even if it were, based on all the evidence, construction of the Building would not interfere with either Ms. Jordans or Mr. Furlongs view of the harbor. View is not a basis for their standing.
Density. Separate from their views, both Ms. Jordan and Mr. Furlong argue that construction of the Building within the setback as allowed by the variance would harm them by increasing density within an already dense area of the city. Regulation of density is a fundamental purpose of zoning under both c. 40A and the Ordinance. See St. 1975, c. 808, § 2A (objectives of zoning include to prevent overcrowding of land); Exh. 2, Ordinance at §1.1 (purposes of Ordinance include to prevent overcrowding of land). Setback requirements are intended to protect a zoning ordinances interest in regulating or reducing density. See OConnell v. Vainisi, 82 Mass. App. Ct. 688 , 691-692 (2012); Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 295- 297 (2008). Decisions of the Appeals Court have suggested that where a bylaw regulates density and dimensions, an abutters legal interest in preventing further construction in which the existing development is already more dense than the current zoning allows would support standing. Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 519 (2011); Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 11-12 (2009); Dwyer, 73 Mass. App. Ct. at 295-296. The neighborhood of the Property, the Derby Street property, and the Blaney Street property is overcrowded and denser than the Ordinance currently allows. On the other hand, the Property itself and the area in front of the Blaney Street property is relatively open.
I do not read Marhefka, Sheppard, and Dwyer to state a rule that construction in an overcrowded neighborhood creates standing per se on density grounds; nor do I read them to create a requirement that a neighborhood must already be overcrowded before density concerns can cause an injury that supports standing. Rather, those cases stand for the proposition that the existence of current overcrowding makes it far easier for a plaintiff to establish standing based on overcrowding and density concerns. See, e.g., Dwyer, 73 Mass. App. Ct. at 296 (dense neighborhood creates question of whether the issuance of the zoning relief affected the [plaintiffs] directly). Ms. Jordan and Mr. Furlong are not entitled to standing simply because the Building will be built within the setback; they must prove harm from the encroachment that is (1) not de minimis and (2) particularized to them. Marhefka v. Zoning Bd. of Appeals of Sutton, 21 LCR 1 , 5 (2013). That they live in an already dense neighborhood is evidence of that harm.
Brewer has successfully rebutted Ms. Jordans presumption of standing based on density. Reviewing all the evidence, including the density of the neighborhood, I find that Ms. Jordan will not be harmed by an increase in density caused by the Buildings being constructed within the setback or that such harm will be de minimis. Locating the Building on the northern edge of the Property, as proposed, has less impact on Ms. Jordan and the Derby Street property than would locating the Building anywhere else on the Property. The Building will hardly be visible from the Derby Street property. It would be much more visible if built within the setbacks required under the Ordinance. Any increase in density from the Buildings construction within the setback as allowed by the variance will not harm Ms. Jordan. As she has not demonstrated any harm from the construction of the Building that is protected under the Ordinance, she has not established that she is aggrieved by the variance. Ms. Jordans claims shall be dismissed without prejudice.
The situation is different for Mr. Furlong. Construction of the Building within the setback along the northern edge of the Property will increase density for Mr. Furlong and cause him harm. The Building would be clearly visible from Mr. Furlongs condominium. It would be a nearly 40-foot high, 163-foot long structure located only 100 feet from his unit, in a location that currently is open except for the small dock house. The difference in impact to Mr. Furlong between locating the Building within the required 30-foot setback and locating the Building five feet or less from the Property boundary is significant. Mr. Furlong would suffer harm to his protected interest in reduced density from construction of the Building under the variance. He is aggrieved by the variance and has standing to bring this action under G.L. c. 40A, § 17.
Variance. I now turn to the merits of Mr. Furlongs appeal, namely, whether the ZBA properly granted the variance from the setback requirements of the Ordinance to permit Brewer to construct the Building within the setback.
No one has a legal right to a variance, and variances are granted sparingly. The 39 Joy St. Condominium Assn v. Board of Appeal of Boston, 426 Mass. 485 , 489 (1998); Pendergast v. Board of Appeal of Barnstable, 331 Mass. 555 , 557, 559 (1954). To grant the variance, the ZBA was obligated to find that
owing to circumstances relating to the soil conditions, shape, or topography of [the Property] and especially affecting [the Property] but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the [Ordinance] would involve substantial hardship, financial or otherwise, to [Brewer], and . . . desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of [the Ordinance].
G.L. c. 40A, § 10. The standard is conjunctive; all three of these conditions must be met to issue a variance. Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460 , 462 (1969); Spaulding v. Board of Appeals of Leicester, 334 Mass. 688 , 692 (1956); Perez v. Board of Appeals of Norwood, 54 Mass. App. Ct. 139 , 142 (2002). In this appeal under G.L. c. 40A, § 17, of the grant of the variance, the burden is on Brewer, the entity seeking the variance, and the ZBA to present evidence proving that the statutory prerequisites have been met and that the variance is justified. Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1 , 10 (1981), quoting Dion v Board of Appeals of Waltham, 344 Mass. 547 , 555-556 (1962); see The 39 Joy St. Condominium Assn, 426 Mass. at 488.
Thus, Brewer and the ZBA must prove that the Decision contains specific findings that all three prerequisites for the variance were satisfied and that those findings are supported by the evidence. The Decision provides that the ZBA makes the following findings:
1. Literal enforcement of the provision of the Zoning Ordinance would require the applicant to place the building in such a location the Board finds to be less appropriate than the one proposed. The view analysis presented showed that the impact of views from the neighborhood would be lessened if the building were placed where proposed.
2. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning ordinance, since impacts to the neighborhood were shown to be less substantial if sited as proposed rather than where it would be allowed by right.
3. In permitting such change, the Board of Appeals requires certain conditions and safeguards as noted below.
The ZBA specifically found that the variance, allowing Brewer to place the Building within the setback on the northern edge of the Property, would not be of substantial detriment to the public good and would not nullify or substantially derogate from the intent or purpose of the Ordinance. This finding is supported by the evidence at trial. Locating the Building along the northern boundary of the Property would preserve the rest of the marina as an open area, and would not interfere with the views of the rest of the neighborhood to any significant extent. Placing the Building in the middle of the Property would actually make the area denser, because the Building would be more visible and appear to take up more of the Property than it would on the northern boundary. While Mr. Furlong would experience increased density from the Building, he would also experience an increase in density, if to a lesser extent, if the Building were located in the middle of the Property.
The ZBA did not make an explicit finding that the Property has soil conditions, shape or topography that are different from the other properties in the zoning district, and that because of these unique conditions enforcement of the Ordinance would create a hardship, financial or otherwise, to Brewer. G.L. c. 40A, § 10. The ZBA only found that literal enforcement of the setback requirements of the Ordinance would require [Brewer] to place the building in such a location the Board finds to be less appropriate than the one proposed. Exh. 6. This is not the samethere is no reference in the Decision to soil conditions, shape or topography, and no finding of hardship. This failure to make the required findings would be enough to justify annulling the Decision. Spaulding, 334 Mass. at 692; Simone v. Board of Appeals of Haverhill, 6 Mass. App. Ct. at 604 (where the boards decision contains only the most cryptic allusion to the requirements for a variance, the trial judge could have annulled the decision without reaching the merits).
Notwithstanding the failure of the Decision to make the required finding of hardship, I will consider whether the evidence at trial supports such a finding. In reviewing the board's decision, the judge is required to hear the matter de novo and determine the legal validity of the decision of the board upon the facts found by him. The 39 Joy Street Condominium Assn, 426 Mass. at 488, quoting Josephs v. Board of Appeals of Brookline 362 Mass. 290 , 295 (1972). That evidence disclosed that Brewer did not demonstrate the required hardship due to soil conditions or topography. Brewers witnesses readily conceded that there was nothing about the soil conditions or topography of the Property that prevented Brewer from meeting the setback requirements. The evidence did, however, disclose that Brewer successfully demonstrated hardship due to the shape of the Property. Brewers witnesses testified to the safety hazards that would be created by constructing the Building consistent with the setback requirements while also continuing to use the marine travelift on the Property in a manner consistent with their current business practices. I found that requiring the Building to meet the setback requirements would create a safety hazard where injury to people and property would be likely.
The question then becomes, whether the hardship demonstrated by Brewers evidence is one that merits granting the requested variance. I find that it is. Injury or the risk of injury is, in narrow circumstances, a sufficient hardship to merit the issuance of a dimensional variance. See Josephs, 362 Mass. at 293 (allowing a variance where building in compliance with a zoning bylaw would necessitate the construction of a hazardously steep access ramp). This court has found that [p]hysical injury caused by shape, soil conditions, or topography can be a basis for hardship. Marhefka, 21 LCR at 7, citing Campbell v. City of Cambridge Bd. of Zoning Appeal, Mass. Super. LEXIS 495 (2007) (upholding a variance where the demonstrated hardship was the risk of head injury due to low ceilings). In Marhefka, the hardship to the defendants was the risk of injury from slipping on snow and ice that accumulated in their parking area. Id. Here, Brewer has successfully proven that the risk of injury associated with using the marine travelift would be exacerbated if they were to construct the Building consistent with the required setbacks.
I do not read Josephs, Campbell, and Marhefka to suggest that in any case where a safety hazard may be proven, the situation merits the issuance of a variance. I repeat that no one has a legal right to a variance, and variances are granted sparingly. The 39 Joy Street Condominium Assn, 426 Mass. at 489. Nevertheless, in a case such as this where there is a demonstrated safety hazard that may be abated by granting a variance, the unique facts of the situation should be considered. Where a variance diminishes the risk of an existing harm or where it prevents a greater risk of harm that would result from compliance with a zoning ordinance, such a hardship may merit a variance. I find that this case is one such instance.
I must concern myself with the validity but not the wisdom of the ZBAs Decision. Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). While the ZBA failed to make the findings required by G.L. c. 40A, § 10, the evidence presented de novo at trial, G.L. c. 40A, § 17, demonstrated that, owing to the specific shape of the Property, Brewer could not construct the Building within the setback without substantial hardship, and the variance could be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Ordinance. The variance was properly granted. Judgment shall be entered dismissing Ms. Jordan's claims without prejudice, affirming the Decision, and dismissing Mr. Furlongs claims with prejudice.
[Note 1] Plaintiffs motion to dismiss Maria Castro, David Frank, Shannon ODonnell, Michele Cormier, Priscilla Lord, and Kristen OConnor as plaintiffs is this case was allowed by the Court on December 12, 2012. Mark A. Perez and Harold C. Le Sage, Jr. were dismissed as plaintiffs on the first day of trial, September 11, 2013.
[Note 2] A slip is a floating dock that is attached to the land by a gangway and pilings. A mooring is a block and chain in the water to which a boat is tied and that is not connected to the land. Tr. I-199-200