ANGELO P. CATANZARO, TRUSTEE OF THE 140 POPPONESSET ISLAND ROAD REALTY TRUST vs. JAY J. DERENZO and ELIZABETH A. DERENZO, TRUSTEES, and JONATHAN FURBUSH, WILLIAM A. BLAISDELL, JAMES REIFFARTH, SCOTT GOLDSTEIN and DOMINGO K. DEBARROS, as they are members of THE ZONING BOARD OF APPEALS OF THE TOWN OF MASHPEE.

Plaintiff, Angelo P. Catanzaro, Trustee of the 140 Popponesset Island Road Realty Trust, filed his unverified Complaint on April 3, 2014, pursuant to G. L. c. 40A, § 17, appealing a decision (the “ZBA Decision”) of Defendant Town of Mashpee Zoning Board of Appeals (the “ZBA”) which allowed Defendant Jay J. Derenzo and Elizabeth A. Derenzo, Trustees of the 134 Popponesset Island Road Realty Trust (the “Trustees”), a continuance, extension or alteration of a pre-existing, non-conforming structure so as to allow the razing of an existing single family dwelling and the construction of a new single family dwelling. The Trustees filed their Answer on April 25, 2014. A case management conference was held on May 29, 2014. On March 17, 2015, the Trustees filed their Motion for Summary Judgment, together with supporting memorandum, Affidavits of Timothy Luff (the Trustees’ building designer) (the “Luff Affidavit”), Thomas Bunker (land surveyor and civil engineer) (the “Bunker Affidavit”), Joseph Clancy(appraiser) (the “Clancy Affidavit”), John Vaccaro (environmental consultant) (the “Vaccaro Affidavit”) and Jay Derenzo (Trustee), and Opposition to Plaintiff’s Cross-Motion for Summary Judgment. On the same day, Plaintiff filed his Opposition to the Trustees’ Motion for Summary Judgment and his Cross-Motion for Summary Judgment, together with supporting memorandum and Affidavit of Angelo P. Catanzaro (Trustee) (the “Catanzaro Affidavit”). A hearing was held on both motions on March 19, 2015, and at that time the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find that the following material facts are not in dispute:

1. Plaintiff is the owner of property located at 140 Popponesset Island Road in the Town of Mashpee (the “Plaintiff Property”). The Plaintiff Property contains a two story, five bedroom, single family residential structure with an attached two car garage, a detached shed and a dock. The Plaintiff Property is shown as Lot 51 on Land Court Plan 11408-12 titled “Subdivision Plan of Land in Mashpee” dated November 22, 1958 and prepared by Whitney and Bassett (the “1958 Plan”), contains 25,040 square feet, and has frontage on Popponesset Island Road of 125 feet. [Note 1]

2. The Trustees purchased property located at 134 Popponesset Island Road in the Town of Mashpee (the “Trustee Property”) in November 2011. The Trustee Property contains a one story, three bedroom, single family residential structure (the “Original House”) which was built in 1962, containing approximately 2,000 square feet, an attached shed [Note 2], a detached shed, a raised patio incorporating an in-ground swimming pool, and a dock. The Trustee Property is shown as Lot 50 on the 1958 Plan, contains 32,920 square feet, and has frontage of 125 feet on Popponesset Island Road. The Plaintiff Property and the Trustee Property abut.

3. The Plaintiff Property and the Trustee Property are both located in the R-3 Residential Zoning District. The R-3 Residential Zoning District requires a lot area of 40,000 square feet and a frontage of 150 feet. As a result, both the Plaintiff Property and the Trustee Property are non- conforming lots.

4. The Original House and other structures on the Trustee Property (the sheds, raised patio and pool) are non-conforming due to a failure to meet the Mashpee Zoning By-Law (the “By-Law”) requirements regarding setback from a wetland and percentage of lot coverage. According to the Existing Conditions Plot Plan (Sheet #1) dated February 13, 2014 and prepared by BSS Design (“Plot Plan 1”), the Original House has a setback of 46 feet from the coastal wetland bank [Note 3] (50 feet required), and the swimming pool has a setback of 21 feet from the coastal wetland bank (50 feet required). Additionally, the existing lot coverage, including accessory structures (the sheds, raised patio and pool), is 25.68% (maximum 20% required).

5. On February 14, 2014, the Trustees filed an application (the “Application”) with the ZBA for a Specific Finding under Section 174-17 of the By-Law [Note 4] to change, extend and alter the existing non-conforming structures onthe Trustee Property byrazing and replacing the Original House, sheds, raised patio and swimming pool with a new two story, five bedroom, residential structure (the “New House”) with a lot coverage of approximately 6,000 square feet [Note 5], and a rectangular, in-ground swimming pool with an adjacent pool house. According to the Proposed Site Plan Plot Plan (Sheet #2) dated February 13, 2014 and prepared by BSS Design (“Plot Plan 2”), the New House will have a front yard setback of 43.5 feet (40 feet required), side yard setbacks of 15.8 feet and 15.7 feet (15 feet required) and a wetland setback of 39 feet (50 feet required). The pool will have a wetland setback of 23 feet (50 feet required).The pool and pool house will have side yard setbacks of 41.5 feet (15 feet required) and 15.5 feet (15 feet required), respectively. The lot coverage of the New House, pool and pool house willbe 24.03% (maximum 20% required). The height for the New House will be 35 feet (35 feet required). The New House will comply with the By-Law with respect to the adequacy of parking spaces on the lot.

6. The Mashpee Conservation Commission (the “ConCom”) approved the New House, pool and pool house on February 27, 2014, and an Order of Conditions issued on March 20, 2014. Plaintiff did not appeal the Order of Conditions.

7. The septic system for the New House has been approved by the Mashpee Board of Health.

8. The ZBA issued a decision on March 12, 2014 (the ZBA Decision) which unanimously granted a Written Finding to allow the New House. The ZBA Decision stated

1. The proposed reconstructed dwelling will not be substantially more detrimental than the existing non-conforming structure or use to the neighborhood.

2. The new additions will be an improvement to the lot and is similar in size and character to other existing structures in the neighborhood . . .

4. Reconstruction of the dwelling is contingent upon Board of Health final approval.

5. Reconstruction of the dwelling will conform to current building code requirements.

6. There is adequate land area to provide sufficient parking and setbacks as may be required.

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Plaintiff argues that he has standing, and that there is no evidence to support the ZBA Decision. The Trustees argue that the ZBA Decision was supported by the evidence. They also argue that Plaintiff has no standing to challenge the ZBA Decision. I shall address each issue in turn.

A. Standing.

The Trustees argue that Plaintiff lacks standing. G.L. c. 40A § 17 provides aggrieved parties a right to judicial review of a decision by the zoning board of appeals. It is presumed that an abutter is an “aggrieved party” for the purposes of G.L. c. 40A § 17, and that they thus have standing to challenge the decision of a zoning board of appeals. 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012). If the abutter has alleged a harm explicitly or implicitly protected by the zoning laws, the opposing party can rebut the presumption of standing by providing evidence, such as affidavits of experts, that the abutter’s claims of aggrievement are unfounded or minimal. Id. at 700, 702. The presumption of standing is eliminated once the defendant offers evidence challenging the plaintiff’s status as an aggrieved party. Watros v. Greater Lynn Mental Health & Retardation Ass'n, Inc., 421 Mass. 106 , 111 (1995).

Plaintiff argues that he has presumed standing because he is an abutter to the Trustee Property, and that he has harms related to interference of light, privacy, air, view and diminution of property value, which will result from the increased size of the New House. Plaintiff has attached the Catanzaro Affidavit as to these alleged harms. Plaintiff is presumed to have standing under G.L. c. 40A § 17 due to his status as an abutter to the Trustee Property.

The Trustees have produced the Luff Affidavit, the Vaccaro Affidavit, the Bunker Affidavit and the Clancy Affidavit, which all indicate that the New House will not have a detrimental effect on the Plaintiff Property, in an attempt to rebut Plaintiff’s presumed standing. The parties agree that the dimensional yard setbacks and height restriction established under the By-Law are intended to protect a property owner’s interest in light, air and privacy. The Bunker Affidavit states that the proposed setback distance of the New House is greater than fifteen feet, as required under the By-Law, and the height of the roof also complies with the By-Law’s height requirement, so the effect that the New House will have on the Plaintiff Property in regard to adequate light, privacy and ventilation will be minimal, if any. This evidence is sufficient to rebut Plaintiff’s presumption of standing.

Once Plaintiff’s presumed standing has been rebutted, the burden then rests with Plaintiff to prove standing by “establish[ing]- by direct facts and not by speculative personal opinion - that his injury is special and different from the concerns of the rest of the community.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006) (quoting Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992), abrogated on other grounds by Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 (1996)). In order to find that a plaintiff has standing, the court must determine that the plaintiff has “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Def. Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989).

Plaintiff argues that his legal interests in light, air and privacy will be violated as a result of the New House being larger and set closer to Plaintiff’s home. The parties agree that the dimensional yard setback and height restrictions established by the By-Law are intended to protect one’s interests in light, air and privacy. The New House, including accessory structures, is only non-conforming as it relates to setback from a wetland and percentage of lot coverage. Plaintiff has failed to prove that the construction of the New House violates his legal interest in light, air and privacy because the New House will conform to the By-Law concerning both height and side yard setbacks. As a result, I find that the legal interests of light, air and privacy protected by the By-Law have not been abridged by the ZBA Decision.

Generally, concerns about the impact that a structure has on views is not sufficient to confer standing. Martin v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146 (2001). Additionally, view protection is not a stated purpose of the By-Law. As a result, I find that Plaintiff’s stated harm of interference of view is not sufficient to confer standing.

Diminution in value is not a protected harm unless the diminution is tied into some other harm protected by the By-Law. Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 123 (2011). See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 31–2 (2006); Central St., LLC v. Zoning Bd. of Appeals of Hudson, 69 Mass. App. Ct. 487 , 492 (2007). Additionally, “[zoning legislation] is not designed for the preservation of the economic value of property, except in so far as that end is served by making the community a safe and healthy place in which to live.” Tranfaglia v. Bldg. Com'r of Winchester, 306 Mass. 495 , 503-04, (1940). Plaintiff has failed to provide direct facts, beyond his speculative personal opinion set forth in the Catanzaro Affidavit, that the construction of the New House, pool and pool house will lead to a diminution in the value of the Plaintiff Property. Thus, I find that Plaintiff has failed to assert standing on the basis of diminution in property value.

However, as Plaintiff points out, the New House will have more than three times the current living area as the Original House, [Note 6] which raises issues of density because the New House, including the pool and pool house, has more lot coverage than the By-Law allows. If a by-law regulates density and dimensions, an abutter has a legal interest in preventing further construction in a district in which an existing development is already non-conforming based on density and dimension. Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 519 (2011). Section 174-31 of the By-Law clearly regulates density and dimensions. Even though the New House, including the pool and pool house, has less lot coverage than the non-conforming Original House, pool, raised patio and sheds, the New House is more dense because it has approximately three times more square footage than the Original House, and because the Trustee Property, with the Original House, had a significant amount of its lot coverage attributable to the raised patio and swimming pool, rather than the Original House itself. The construction of the New House will eliminate the raised patio of the Original House and replace much of this area with actual living space. As a result, the New House will be a more imposing structure than the Original House, even though the percentage of lot coverage is actually reduced. Plaintiff has a legal interest in preventing this further construction on the Trustees’ already non- conforming lot.

Additionally, the New House is approximately fifteen feet taller than the Original House and the Bunker Affidavit acknowledges that the New House will cast shadows on the Plaintiff Property at certain times of the year. Based on these facts, I find that Plaintiff has produced evidence that he has suffered a particularized injury, and has a plausible claimthat his legal interest in preventing further non-conformity based on the density and dimensions of the New House has been violated by the ZBA Decision.

As a result, I find that Plaintiff has standing to pursue his claim.

B. The ZBA Decision supported by the evidence.

In an appeal pursuant to G.L. c. 40A § 17, the court undertakes a de novo review of the zoning board’s decision and makes a determination as to the legal validity of the zoning board’s decision based on the facts in the record, giving no evidentiary weight to the zoning board’s findings. Roberts v. Sw. Bell Mobile Sys., Inc., 429 Mass. 478 , 485-86 (1999). Case law provides that a court should not set aside a zoning board’s decision unless the decision was “based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). The court is deferential to the zoning board of appeals’ determination and the court must determine that “no rational view of the facts the court has found supports the [zoning board of appeals’] conclusion...” in order to overturn the decision of a zoning board of appeals. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 74-5 (2003).

The ZBA made a written finding that the New House met the criteria set forth under Section 174-17 of the By-Law, supra, based on material presented during a public hearing on the Application. The Trustee Property is already non-conforming in lot size and frontage, and the Original House, including the pool, raised patio and sheds, was non-conforming as to lot coverage and setback from a wetland. Plaintiff argues that the New House will be substantially more detrimental to the neighborhood than the Original House because it is a bigger house. Plaintiff admits that the New House, even with the pool and pool house, will reduce the lot coverage percentage. Additionally, Plaintiff admits that the wetland setback non-conformity will be reduced as it relates to the pool. Plaintiff also admits that the New House will conform with the building height requirement, and front and side yard setback requirements under the By-Law. Moreover, Plaintiff agrees that adequate parking exists based on the Trustees’ proposal.

Plaintiff submitted the Catanzaro Affidavit as evidence of the alleged detriment caused by the New House. The Catanzaro Affidavit contains concerns about the size of the New House and the proximity of the New House to the Plaintiff Property, focusing specifically on the alleged detriment that the New House’s size and location will have on the Plaintiff Property. The Catanzaro Affidavit does not specifically discuss the detriment that the New House will have on the neighborhood as a whole.

The Trustees argue that the New House will not be more detrimental to the neighborhood than the Original House because the New House and accessory structures will violate the By-Law in only two respects (lot coverage and setback from wetland). The Trustees argue that the New House, including the pool and pool house, will reduce the lot coverage in comparison to the Original House, including the raised patio, pool and sheds. The Trustees argue that the New House will also reduce the wetland setback non-conformityas to the pool, which is the closest structure to the coastalwetland bank. [Note 7] Additionally, the Trustees argue that the New House, like the Original House, will meet all current By-Law dimensional requirements for front yard setback, side yard setbacks and maximum building height, which indicates that the New House will not be more detrimental to the neighborhood than the Original House. The Trustees also argue that the New House will improve the lot, and will be similar in size and character to other existing houses located in the neighborhood.

The Trustees offered multiple expert affidavits as evidence supporting the ZBA Decision. The Vaccaro Affidavit states that the New House, including the pool and pool house, “will result in an overall reduction in the amount of hardscape within fifty feet of the coastal bank as compared with the existing conditions.” The Bunker Affidavit indicates that the New House will meet the By-Law requirements relating to height and side yard set back, and will reduce the lot coverage non-conformity. The Clancy Affidavit asserts that there are several houses with greater square footage in the neighborhood, and that multiple houses in the same vicinity were recently razed and replaced by larger structures. This suggests that the increased density of the New House will not have a detrimental effect on the neighborhood because it will be similar to many other houses in the same vicinity with respect to size and density. The Clancy Affidavit also indicates that the New House will not diminish the property value of the Plaintiff Property. Finally, the Luff Affidavit states that the New House will be a substantial improvement to the Trustee Property based on the design and because it will be safer to both the Trustees and their neighbors due to improvements in the physical structure of the New House over the circa 1960 Original House.

In sum, the Trustees’ expert affidavits indicate that the New House is designed to fit into the neighborhood, will conform to all local regulations except the two discussed, supra (which will be less onerous than the non-conformities of the Original House, including accessory structures), and will be an improvement over the Original House to the neighborhood. [Note 8] In addition, the New House has been approved by the ConCom and the Mashpee Board of Health.

Based on the evidence in the case at bar, I find that the ZBA Decision is not based on a legally untenable ground, and is not unreasonable, whimsical, capricious or arbitrary.

As a result of the foregoing, I DENY Plaintiff’s Cross-Motion for Summary Judgment, and ALLOW the Trustees’ Motion for Summary Judgment.

Judgment to enter accordingly.