Robert Buckley and Richard and Elaine Holmes own abutting lots on Long Pond in Freetown. Mr. Buckleys current house sits right on the pond; the Holmeses house sits somewhat upland. The Holmeses challenge the variance granted to Buckley to construct a new house on his narrow lot that is only five feet from their common boundary. After trial, I find that the Holmeses have standing to challenge the variance, and that, because the Freetown Zoning Board of Appeals failed to make the findings required by G.L. c. 40A, § 10, to support the grant of a variance, the variance must be annulled and the case remanded to the ZBA.
Richard W. Holmes, Elaine M. Holmes, Timothy Levesque, and Rebecca Levesque filed their complaint on November 12, 2013 naming as defendants the members of the Town of Freetown Zoning Board of Appeals (ZBA) and Robert Buckley. The complaint is an appeal of a variance pursuant to G.L. c. 40A, § 17. A case management conference was held on January 8, 2014. The claims of plaintiffs Timothy Levesque and Rebecca Levesque were dismissed with prejudice by a stipulation of dismissal filed May 12, 2014.
A pretrial conference was held on August 21, 2014. A view was taken and a trial held on October 9, 2014. The court heard testimony from Robert Buckley, Dennis Swart, Azu Etoniru, Richard Holmes, and Elaine Holmes. Exhibits A through N were marked. Robert Buckleys Motion for a Required Finding of Dismissal was heard and denied.
Defendant Robert Buckleys Request for Findings of Fact and Rulings of Law was filed on December 12, 2014. Plaintiffs Post Trial Brief was filed on December 15, 2014. The court heard closing arguments on December 18, 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. Robert Buckley and his wife Patricia Buckley are the record owners of a parcel of land located in the Town of Freetown, Massachusetts, known and numbered as 251 Middleboro Road (sometimes also known as 251A Middleboro Road) and shown on Freetown Assessors Map 221 as Lot 34 (Buckley Property). They acquired the Buckley Property in May 2003. Tr. 13, 20; Exhs. A, G-1, G-4.
2. Richard W. Holmes and Elaine M. Holmes are the owners of a parcel of land located in the Town of Freetown, Massachusetts, known and numbered as 253 Middleboro Road and shown on Freetown Assessors Map 221 as Lot 35 (Holmes Property). Tr. 20; Exhs. A, G-1, G-4.
3. Both the Buckley Property and the Holmes Property abut Long Pond on their western bound and Middleboro Road on their eastern bound. The Buckley Property bounds the Holmes Property on its northern bound. View; Tr. 45-46; Exhs. G-1, G-4, K-5, K-6, K-7.
4. The Buckley Property contains approximately .28 acres. It is long and narrow 33 feet wide at Middleboro Road and 35 feet wide at Long Pond, and 348 feet long on its northern bound and 333.05 feet on its southern bound. It slopes down from Middleboro Road to Long Pond. View; Tr. 13-14, 21-22; Exhs. D, G-1, G-4.
5. The existing house on the Buckley Property sits on the edge of Long Pond. Built sometime in the 1940s, it is a two-story wood structure of approximately 1500 square feet of living space. It has dimensions of approximately 27 by 26 feet, including the enclosed porch on the western side of the house abutting the pond, with a foot print of 640 square feet plus 120 square feet for the enclosed porch. The front door faces Middleboro Road. At the edge of the pond are some steps, a retaining wall, and a cement landing area. It sits entirely within the flood zone. View; Tr. 14-15, 25-28, 31, 47-49, 79-80, 92-93; Exhs. D, K-8.
6. The Buckleys have used the Buckley Property as a summer house. They boat, use the porch, and entertain guests. They currently park cars and boat trailers on the lawn of the property, approximately 40 to 50 feet from the door of the existing house. Tr. 23-24
7. In March 2010, there was a flood on Long Pond. A considerable amount of waterup to 2 ½ inchescame into the existing house, damaging it. The flood affected other properties on Long Pond as well, especially ones that were in the flood zone. Tr. 17-18, 35, 43- 45, 111-112, 114-116; Exhs. G-4, K-1, K-2, K-3, K-4, K-12.
8. After the flood, the Buckleys were not happy with the amount at which their insurer adjusted their claim. The adjuster told Mr. Buckley that he believed the problems with the existing house were long-term problems caused by the houses location. A report was then prepared by U.S. Forensic, LLC (the USF Report). The USF Report found that the existing house had damage to its foundation walls and to the floors, but that this damage was not caused by the flood. Rather, it was long-term damage caused by the house having been constructed on wet soils at the edge of Long Pond. Tr. 19, 29-32, 35, 41-43; Exh. H.
9. At the same time, Mr. Buckley also obtained a report on the existing house from Noblin & Associates, L.C. (Noblin Report). The Noblin Report was prepared by Ralph E.M. Noblin, a professional engineer. It recommended that the first-floor sheetrock, insulation, and framing be removed and replaced and that the concrete foundation of the existing house be replaced in order to provide suitable support and clearance for the new framing (8 inches minimum) and siding/sheathing (6 inches minimum) above the adjacent, finished grade. Tr. 31- 32; Exh. I.
10. P.J. Cincotta, Inc. (Cincotta) provided a proposal to the insurance adjuster on behalf of Mr. Buckley. Cincotta proposed lifting the house, pouring a new foundation, rebuilding the porch, and installing a concrete vapor barrier and close cell insulation. The proposed cost of this work was $58,750.00. Tr. 32-34; Exh. J.
11. Mr. Buckley believed that, given the unusual construction methods of the existing floor joists and foundation, the necessity to bring the existing house in compliance with the current building code as part of any repair, and indications from the USF Report that the current location of the existing house was the source of the problem, the cost of repairing the existing house would be too high. Mr. Buckleys engineer, Azu Etoniru, advised Mr. Buckley against repairing the exiting house, as it would continue to be flooded, resulting in further damage to the foundation. Tr. 62-63, 80-81; Exh. H.
12. Instead, Mr. Buckley sought to build a new house upland from Long Pond. The proposed house would sit approximately 80 to 85 feet from Long Pond and 216.6 feet from Middleboro Road, a location outside the flood zone that leaves sufficient room between the house and road to locate both the current leaching field and new reserve area. It would be a two- story dwelling, but larger than the existing house. It would have 1,920 square feet of living area plus a basement, a porch at the rear, and a covered entry at the front. Including the rear porch and front entry, it would be 66 feet long and 48 feet wide on the first floor, and 38 feet by 28 feet on the second floor, with a footprint of 1,056 square feet. It would be 36 feet, 1 inch high from average grade to ridge. Mr. Buckley anticipates that it would cost approximately $200,000 to build the proposed house. View; Tr. 36-41, 66-72, 80, 83-84, 92; Exhs. D, E.
13. The proposed house would sit 5.3 feet from the boundary between the Buckley and Holmes Properties. The sideline setback requirement of the Freetown Zoning By-Laws (By- Laws) is 20 feet. Exh. B, Bylaws Art. 11.3.G.2; Exh. D.
14. The Holmeses purchased the Holmes Property in August 2004. Their house is 24 feet high. It is two stories with a walk-out basement and a deck on the first floor. There is also a small deck accessible from a second-floor bedroom. It is 88 feet from the existing house on the Buckley Property. The proposed house on the Buckley Property would be between 35 and 42 feet from the Holmeses house at its closest point. The driveway of the Holmes Property sits a few feet from the boundary between the two properties. View; Tr. 93-94, 105-106, 120-121, 126- 127, 134-135, 142-144; Exhs. D, K-5, K-6, K-7, K-10, K-11, K-13, K-14, L, M.
15. The existing house on the Buckley Property sits lower than and is not very visible from the house on the Holmes Property. The proposed house on the Buckley Property would be higher and closer to the first floor deck and second-floor bedroom window and deck of the Holmes Property house. View; Tr. 124-125, 128-133, Exhs. K-16, K-17, K-18, K-19, K-21, K- 22, K-23.
16. The Holmeses are concerned that if the proposed house is built on the Buckley Property, they will suffer a loss of privacy due to the proximity of the proposed house to their house compared to the location of the existing house. They believe that they will see and hear activity at the proposed house from their deck and bedroom window. They are also concerned that the proposed house would interfere with sunlight as it would block their current southern exposure. I credit these concerns. View; Tr. 121-122, 148-154; Exhs. L, M.
17. On August 6, 2013, Mr. Buckley filed a petition with the ZBA requesting variances from the sideline setback requirements of the By-Laws as necessary to demolish the existing house and build the proposed house on the Buckley Property. Exhs. A, F.
18. At a public meeting held on October 16, 2013, the ZBA voted to grant the requested variance to Mr. Buckley. The ZBAs Findings and Decision (Decision) were filed with the Freetown Town Clerk on October 25, 2013. Exhs. A, C.
19. On November 12, 2013, the Holmeses filed this action in the Land Court appealing the Decision. Exh. A.
Discussion and Conclusions of Law
The two questions of law to be determined are whether the Holmeses have standing to bring this challenge to the Decision, and, if they do, 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 Mr. Buckley his variance, the Holmeses 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 Holmes Property abuts the Buckley Property and the Holmeses thus enjoy the presumption of standing.
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 Mr. Buckley 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 By-Laws are 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. 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; see id. at 123 (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.
In their testimony and their answers to interrogatories marked as Exhibits L and M, the Holmeses make passing references to traffic, snow, and property values as interests that they allege would be harmed by the construction of the proposed house under the Decision. None of these concerns is supported by any evidence, and they cannot form a basis for standing.
The Holmeses make more detailed and specific allegations that construction of the proposed house on the Buckley Property within the setback as allowed by the variance would harm them by increasing density. Regulation of density is a fundamental purpose of zoning under c. 40A. See St. 1975, c. 808, § 2A (objectives of zoning 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). Thus, Mr. Buckley cannot rebut the Holmeses presumption of standing on the grounds that their density concerns are not an interest protected by the zoning laws. Rather, he must rebut the presumption by showing that the Holmeses allegations of harm are unfounded or de minimis. 81 Spooner Road, LLC, 461 Mass. at 702.
The neighborhood around Long Pond and Middleboro Road contains several undersized lots, including the Buckley Property, making that area denser than otherwise permitted by the By-Laws. Exhs. G-1, G-2, G-4. 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. I do not read Marhefka, Sheppard, and Dwyer, however, 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). The Holmeses cannot establish harm supporting standing simply because the proposed house 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, but not conclusive evidence, of that harm.
In their interrogatories, the Holmeses identified specific harms that they alleged they would suffer from the increased density of the proposed structure. These included the loss of privacy from their bedroom windows and bedroom deck looking directly at the proposed structure and that their activity on their deck would be both visible and audible to persons at the proposed structure and vice versa. Exhs. L, M. These are sufficient allegations of harm to an interest protected by the By-Laws to require Mr. Buckley, in order to rebut the Holmeses presumptive standing, to come forward with credible affirmative evidence that would warrant a finding that these concerns are unfounded or de minimis. See 81 Spooner Road, LLC, 461 Mass. at 702-704. At trial, I found that Mr. Buckley presented such evidence or at least rebutted the Holmeses evidence of standing sufficiently to rebut the presumption of standing. I now reconsider that finding. Mr. Buckley did not, in his case in chief, present evidence that, if believed, would warrant a finding that the harm outlined in the Holmeses interrogatories is unfounded or de minimis. I now find that the Holmeses presumption of standing was not rebutted by Mr. Buckley.
For purposes of completeness, however, I will examine the evidence of harm presented by the Holmeses to determine whether, even assuming their presumption of standing was rebutted, they proved that they are aggrieved by the variance to construct the proposed house on the Buckley Property. Based on the view, the photographic exhibits, the interrogatory answers, and the testimony of both Mr. and Ms. Holmes, which I credit, I find that construction of the proposed house within the setback, as permitted by the Decision, would increase the density experienced by the Holmeses, to their detriment. The proposed house would be so close to their house that it would be very visible from their bedroom window and bedroom deck; the existing house is not nearly so visible. I find that the Holmeses are correct that their privacy in their use of their deck would be lessened by the proposed house; that they would hear, see, and smell the activities of the Buckleys at the proposed house; and that the Buckleys would hear, see, and smell their activities on their deck. This loss of privacy is precisely the interest that the density provisions of the By-Laws, including the setback requirements, were intended to protect. The Holmeses have standing as person[s] aggrieved to bring this action. G.L. c. 40A, § 17.
Variance. I now turn to the merits of the Holmeses appeal, namely, whether the ZBA properly granted the variance from the setback requirements of the By-Laws to permit Buckley to construct the proposed house 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 Buckley Property] and especially affecting [the Buckley Property] but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the [By-Laws] would involve substantial hardship, financial or otherwise, to [Buckley], 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 By- Laws].
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); 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 Mr. Buckley, the person 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, Mr. Buckley 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 is short. The only portion of it that could be considered findings states as follows:
The Zoning Board voted unanimous[ly] to grant Mr. Buckley his variance request for relief from side yard set backs. The existing zoning by-law requires a 20 foot side yard set back. Since this lot was created before zoning and is approximately 33 feet wide, relief was granted. The existing house is within the Flood Plain of Long Pond. Although the new house would still be partially built in the Flood Plain, there would be a five foot gain in elevation because of the topography of the lot. This also seemed reasonable to the board.
The Board also determined that the new structure would not be a detriment to the neighborhood.
These findings do not meet the requirements of § 10. The ZBA made no specific finding on what circumstances relating to the soil conditions, shape, or topography of the Buckley Property that are different from the surrounding neighborhood justified the variance. G.L. c. 40A, § 10. There is no finding of how literal enforcement of the provisions of the [By-Laws] would involve substantial hardship, financial or otherwise, to Buckley. Id. There is no finding of how the variance may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the By-Laws. Id. The only required finding that the ZBA could be said to have made is that in stating that the new structure would not be a detriment to the neighborhood, Exh. C. Even that finding, however, does not directly address what § 10 requires, namely whether the variance could be granted without substantial detriment to the public good. G.L. c. 40A, § 10. The ZBAs failure to make the required findings is enough to justify annulling the Decision. Spaulding, 334 Mass. at 692; Simone v. Board of Appeals of Haverhill, 6 Mass. App. Ct. 601 , 604 (1978) (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).
While there may or may not be sufficient grounds to grant Buckley a variance, the evidence at trial was not fully directed at the specific standards for a variance, and I am not in a position to decide in place of the ZBA whether and on what grounds a variance should issue to Buckley for the proposed house. That is the duty in the first instance of the ZBA. This Decision will be annulled, and this case remanded to the ZBA for proceedings consistent with this decision. On remand, it can reconsider Buckleys application for a variance. If the ZBA decides to grant the variance, it must issue a decision that makes and supports all the findings required by § 10.