OSCAR T. BROOKINS and KATHRYN J. BROOKINS v. THE BOSTON ZONING COMMISSION, THE BOSTON REDEVELOPMENT AUTHORITY, THE DEPARTMENT OF NEIGHBORHOOD DEVELOPMENT, THE BOSTON ZONING BOARD OF APPEAL, and SEBASTIAN MARISCAL STUDIO.

I. INTRODUCTION

This action is an abutter appeal from an April 22, 2014 decision of the Defendant Boston Zoning Board of Appeal (“Board of Appeal”), which granted Defendant Sebastian Mariscal Studio (“SMS”) certain variances from the Boston Zoning Code for construction of a mixed use, multi-family/retail development (the “Proposed Development”) on property at 77 Terrace Street and 778-796 Parker Street, Boston (the “Project Site”). An appeal from a Boston Zoning Board of Appeal decision is normally outside the Land Court’s jurisdiction. [Note 1] However, the Proposed Development meets and exceeds the 25-unit jurisdictional threshold for the Land Court’s Permit Session. See G.L. c. 185, § 3A. The Plaintiffs’ action, which was originally filed in the Superior Court, was transferred to the Permit Session by order of the Chief Justice of the Trial Court on November 25, 2014.

A trial was held on December 15 and 16, 2015. Only Oscar Brookins, Plaintiff and abutting neighbor to the Project Site testified for Plaintiffs. Plaintiffs did not proffer any expert witness testimony.

Six witnesses testified for Defendants:

* Sebastian Mariscal, President and Owner of SMS;

* Gregory C. Tocci, Senior Principal Consultant and Co-Founder of Cavanaugh Tocci Associates, an acoustical consulting firm;

* John A. Regan, Partner and Real Estate Valuation Consultant with Peterson, La Chance, Regan, Pino;

* Kerri Pyke, Traffic Engineer with Howard/Stein-Hudson Associates;

* James Policastro, neighbor to the Project Site; and

* John Hauck, neighbor to the Project Site.

Mr. Tocci, Mr. Regan, and Ms. Pyke were qualified and admitted as experts for Defendants.

The parties stipulated to twenty-two (22) agreed facts and admitted a total of twenty-five (25) agreed exhibits into evidence at trial. Following receipt of the trial transcripts, the parties’ respective proposed findings of fact and rulings of law, and their post-trial briefs, the court took the matter under advisement on February 22, 2016.

As discussed below, I now find and rule that Plaintiffs are not “person[s] aggrieved” within the meaning of Section 11, and thus do not have standing to maintain this zoning appeal. Accordingly, judgment shall enter dismissing Plaintiffs’ appeal. [Note 2]

II. FINDINGS OF FACT

Based on the pleadings, the parties’ statement of agreed facts, the admitted exhibits, and the trial testimony, I find the following pertinent facts, reserving certain details for my discussion of specific legal issues:

The Project Site

1. The Project Site is comprised of eleven (11) city of Boston-owned parcels of land in the Mission Hill neighborhood of Boston, comprising a total of 59,286 square feet.

2. The Mission Hill neighborhood is urban, characterized by paved surfaces and multi-story buildings. It is primarily a densely-developed residential area with many two- and three- family dwellings, and a few small- to mid-sized apartment buildings and single-family dwellings. In addition to mixed-use residential buildings, there are a few light industrial and commercial buildings along Terrace Street where the area is zoned Local Industrial (“LI”).

3. The Project Site is bounded on its eastern side by Terrace Street and on its western side by Parker Street, which both run roughly north-south and parallel to one another.

4. The portion of the Project Site abutting Terrace Street is located in the “LI” (Local Industrial) zoning subdistrict, and contains approximately 28,300 square feet (the “Terrace Street Lot”).

5. The ten parcels abutting Parker Street are located in the “3F-3000” residential zoning subdistrict (the “Parker Street Lots”). They range in size from 2,174 sq. ft. to 5,526 sq. ft. The 3F-3000 residential zoning subdistrict allows, by-right, one dwelling unit for each 1,500 square feet of lot area in a parcel.

6. All of the parcels that comprise the Project Site could be separately developed. The Terrace Street Lot could be developed with an LI subdistrict-compliant project, including up to fifty-nine (59) units of “Artists Mixed Use” dwellings. The Parker Street lots could also be developed, by right, into ten (10) distinct one- or two-family homes with a maximum height of thirty-five feet (35’), each with or without curb cuts and off-street parking.

7. The Project Site features a change in grade of approximately thirty-five feet (35’) feet from its lowest elevation at Terrace Street to its highest elevation at Parker Street.

8. The Project Site is in close proximity to the Roxbury Crossing MBTA Orange Line Station (about 4 blocks away) and the Southwest Corridor Public Pathway system (about 2 blocks away).

9. The Project Site was previously operated by the neighborhood residents as an “art park” and community garden until after environmental testing showed portions of the Project Site to be contaminated with lead, EHP compounds, barium, cadmium, chromium, and mercury.

10. The Project Site is currently closed to the public due to its contamination. The Boston Department of Neighborhood Development estimates that remediation of the Project Site will require the removal and proper disposal of approximately 21,300 cubic yards of impacted urban fill. SMS, which will be undertaking the remediation as part of the Development Project, has estimated the cost of such remediation to be approximately $1.2 million.

11. Due to lack of upkeep since the area has been closed to the public, trash and debris has accumulated on some portions of the Project Site. At least one neighbor has observed alleged illegal drug activity and public drinking taking place at the Project Site since the park and garden were closed.

The Proposed Development

12. SMS acquired the right to seek zoning approval for development of the Project Site by virtue of its selection by the Boston Department of Neighborhood Development pursuant to a public bidding process as part of the City of Boston’s “E+ Green Building Program” for new building projects that generate more energy than they consume. Due to on-site solar, geothermal heat, and other sustainability measures, the Project Site is estimated to produce 21% more energy than it will consume.

13. SMS seeks to build a mixed-use development with 44 new units of housing, 4,124 square feet of retail space, 30 below-grade vehicle parking spaces, 82 bicycle parking spaces, and ground floor retail with local artist space (the “Proposed Development”)

14. Due to the thirty-five foot (35’) grade of the Project Site differential between Parker and Terrace Street, the rooftop of the buildings in the Proposed Development will be roughly level with Parker Street. That is, the proposed roof heights of the buildings will extend no more than thirty inches (30”) above the grade of Parker Street.

15. The Proposed Development would provide 14,253 ± square feet of roof-top green space (nearest to the Parker Street side of the Project Site) to be used as a community garden open to the neighborhood. An additional 14,631 ± square feet of the rooftop will be occupied by a solar panels supplying solar energy to the occupants of the development.

16. The Proposed Development would include ten affordable on-site units, representing more than 20% of the residential units in the Proposed Development.

17. As designed, the Proposed Development does not conform to all applicable use, dimensional and parking regulations of the Boston Zoning Code. On or about April 22, 2014, the Board of Appeal granted the application of SMS for several use, dimensional and parking variances to allow the proposed Development project as designed by SMS (the Variance Decision”).

Traffic & Parking

18. As proposed, vehicular access to the Development’s underground garage would be provided via a single driveway and curb cut on Terrace Street. No vehicular access is proposed from Parker Street.

19. The proposed off-street 44 off-street parking spaces provided for in the Proposed Development is approximately twenty-two (22) spaces short of the Code’s parking requirements applicable to the Mission Hill neighborhood. The Proposed Development has been designed to reduce the number of automobiles by incentivizing alternative transportation means through access to car sharing services (e.g. Zipcar), storage for 82 bicycles, and proximity to public transportation.

20. Upon completion, the Proposed Development is expected to generate about 169 vehicle trips over the course of a typical weekday. On weekdays, the Proposed Development will add nine (9) vehicle trips in the a.m. peak hour and thirteen (13) vehicle trips in the p.m. peak hour.

21. Terrace Street will experience a maximum increase of three (3) vehicles per hour in the southbound direction during the a.m. peak period (4% increase), and a one percent (1%) increase or less in all other directions during a.m. or p.m. peak periods.

22. Parker Street will experience almost no traffic impacts from the Proposed Development. On Parker Street, there will be no additional vehicle trips generated in the a.m. peak period and less than a 1% increase over existing volumes during the p.m. peak period.

Noise

23. Several mature trees on the Parker Street side of the Project Site, which are currently visible from Plaintiffs’ properties, will be removed during the construction of the Proposed Development. The Proposed Development’s landscaping plan calls for the planting of seven (7) deciduous trees along the Parker Street frontage to replace the removed trees. The replanted trees are not expected to be fully mature for at least ten (10) years. The site plan for the Proposed Development does not identify any specific size or species for the replacement trees.

24. As constructed, the Proposed Development will effectively create a sound barrier wall with respect to traffic noise on Terrace Street as transmitted to Parker Street residents. The reduction in Terrace Street traffic sounds is estimated to be between 0 and 8 decibels (dBA).

25. Due to this sound barrier effect, Plaintiffs’ three properties would each experience the same or less noise (between 0 and -1 dBA) after the Proposed Development is complete than before, even assuming no foliage on the Project Site’s replanted trees.

Property Value

26. Real estate market data from January 2011 to October 2014 for the Mission Hill neighborhood shows that the surrounding residential neighborhood is an appreciating market, experiencing increased prices and stable to decreasing market exposure periods.

27. In the Mission Hill neighborhood, three properties that were resold between 2012 and 2014, that were not located near a new construction project, experienced an annual appreciation of between 22-53%. Two properties that were resold between 2011 and 2014, that were near a new construction project, experienced an annual appreciation of 16%.

28. Plaintiffs’ property values will not decrease as a result of the construction of the Proposed Development.

Plaintiffs’ Properties

29. Plaintiffs, Oscar T. and Kathryn J. Brookins have lived in the Mission Hill neighborhood at 4 Hillside Street since at least 1987. They are also the owners of two other properties in the same Mission Hill neighborhood, 803 Parker Street and 6 Hillside Street.

30. No. 4 Hillside Street is a two-family dwelling, but the Brookins use and occupy it as a single dwelling unit. It has two off-street parking spaces.

31. No. 6 Hillside Street is a one-family dwelling currently rented to tenants by the Brookins. It has three off-street parking spaces.

32. No. 803 Parker Street is a three-family dwelling currently rented to tenants by the Brookins as three separate units. It has no off-street parking spaces.

33. The 803 Parker Street property sits across the street from the southern section of the Project Site abutting Parker Street. The 4 and 6 Hillside Street properties sit roughly west of (behind) 803 Parker Street on Hillside Street, a cross street running perpendicular to the southern side of the Project Site abutting Parker Street.

34. If the Proposed Development is built, both the rooftop solar panels and community garden will be visible from Plaintiffs’ properties, although they may be obstructed from view, in part, by foliage on the replacement trees. Other than their rooftops, none of the residential units will be visible from Plaintiffs’ properties.

III. DISCUSSION

Plaintiffs claim that the Board of Appeal exceeded its authority in granting SMS variances for the Proposed Development. Plaintiffs claim they are aggrieved by the April 22, 2014 Variance Decision because of parking, traffic, noise, and property value impacts that will result from the Proposed Development. Defendant SMS challenges Plaintiffs’ standing to maintain this appeal arguing that they are not, in fact, aggrieved. SMS further asserts that the variances were properly granted by the Board of Appeal.

Because I find that Plaintiffs are not aggrieved by the Variance Decision, their appeal will be dismissed on that basis and I need not, and do not, reach the underlying question of whether the Board of Appeal exceeded its authority in granting the subject variances for the Proposed Development.

Standard of Review - Standing

Section 11 of the Boston Zoning Enabling Act, provides that “[a]ny person aggrieved by a decision of [the] board of appeal, whether or not previously a party to the proceedings, or any municipal board or officer, may appeal.” The phrase “[a]ny person aggrieved” is identical to the language of G.L. c. 40A, § 17, conferring standing for appeals of zoning decisions in all other municipalities of the Commonwealth. “Because the language in the Boston Zoning Enabling Act is, in this respect, identical to that in G.L. c. 40A, § 17, as appearing in St. 1982, c. 533, § 1, [the court] may look beyond Boston cases to determine the meaning of aggrieved status for these purposes.” Sherrill House, Inc. v. Bd. of Appeal of Boston, 19 Mass. App. Ct. 274 , 275 (1985).

Abutters, such as Plaintiffs, are presumed to be persons aggrieved. However, the presumption of standing may be rebutted. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); see also Watros, Inc. v. Greater Lynn Mental Health and Retardation Ass’n, Inc., 421 Mass. 106 , 111 (1995). To do so, “[a] party challenging the presumption of aggrievement ‘must offer evidence warranting a finding contrary to the presumed fact.’” Kenner v. Chatham Zoning Bd. of Appeals, 459 Mass. 115 , 118 (2011) (quoting Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34 (2006) (internal quotation omitted)). “If standing is challenged, the jurisdictional question is decided on ‘all the evidence with no benefit to the plaintiffs from the presumption.’” Marashlian, 421 Mass. at 721 (quoting Watros, Inc., 421 Mass. at 111). Without the presumption of aggrievement, “individual . . . property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989). To assert a plausible claim, a “plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. “To show an infringement of legal rights, the plaintiff must show that the injury flowing from the board’s action is special and different from the injury the action will cause the community at large.” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005). When properly challenged, standing is a question of fact for the trial judge to resolve on all the evidence. Marashlian, 421 Mass. at 721.

Plaintiffs’ Standing

Parking and Traffic Impacts

Fear by adjoining landowners of adverse parking and traffic impacts from proposed developments is legitimately within the scope of concerns addressed by zoning law. Marashlian, 421 Mass. at 722. Although Plaintiffs, as abutters, enjoyed a presumption of aggrievement on this basis, Defendants successfully rebutted that presumption by offering the testimony of their traffic engineering expert, Kerri Pyke. Ms. Pyke credibly testified that the Proposed Development will have no negative impacts on either traffic or on-street parking in the neighborhood, and that the thirty (30) parking spaces provided for by the Proposed Development is adequate. Ms. Pyke’s testimony was augmented by numerous photographs of the area streets (Terrace Street, Alleghany Street, Hillside Street, and Parker Street) on various dates and times, demonstrating ample available on-street parking, as well as the testimony of two neighboring residents, Mr. Hauck and Mr. Policastro, who testified that they have experienced little to no difficulty finding parking in the area.

Because Defendants successfully challenged Plaintiffs’ standing with evidence warranting a finding contrary to the presumed fact of aggrievement on the basis of parking and traffic concerns, the burden shifted to Plaintiffs to “put forth credible evidence to substantiate [their] allegations” and “establish—by direct facts and not by speculative personal opinion—that [their] injury is special and different from the concerns of the rest of the community.” Kenner, 459 Mass. at 118 (emphasis added, internal quotation marks and citations omitted). However, Plaintiffs failed to do so.

With regard to parking impacts, even crediting Mr. Brookins testimony that he has found current on-street parking availability to be limited on various occasions, [Note 3] Plaintiffs offered no credible evidence that the Proposed Development, if built, will overburden the current supply of off-street parking. Notably, Plaintiffs accept all of the facts set forth in the Howard- Stein/Hudson Traffic Report prepared by Ms. Pyke, and purportedly challenge only the conclusions reached in that report. Yet, Plaintiffs offered no expert opinion testimony to contradict those conclusions, leaving the court with only the speculative personal opinion of Mr. Brookins that the Proposed Development would further strain the availability of on-street parking. His testimony left unrefuted Ms. Pyke’s opinion testimony that the thirty (30) off-street parking spaces provided for by the Proposed Project are adequate to address the parking needs generated by the Project, particularly in light of the alternative transportation modes which will be available to its residents, including a car sharing service, ample on-site bicycle parking, and nearby public transportation. [Note 4]

Moreover, Plaintiffs provided almost no testimony or evidence concerning traffic impacts. Mr. Brookins testified that he has noticed that the time it takes him to “clear” the intersection of Parker Street and Heath Street (a roundabout) currently runs twenty-five (25) minutes. But he offered no comparison of the current traffic conditions with the traffic conditions in any prior period. Even if I accept this testimony as tending to show that traffic has worsened in this neighborhood over time, however, Plaintiffs did not connect this testimony to any projected impacts from the Proposed Development. Indeed, Plaintiffs altogether failed to rebut the expert testimony of Ms. Pyke, characterizing as “insignificant” the approximately 1-4% increase in trips projected to be generated by the Proposed Development, according to the Howard-Stein/Hudson Traffic Report. The Traffic Report itself notes that the Proposed Development’s “traffic does not add a significant number of vehicle trips to Parker Street or Terrace Street, with a maximum increase of three vehicles per hour per direction on Terrace Street.” Additionally, the traffic analysis presented in the Report shows that the Proposed Development would generate zero trips on Parker Street to the Heath Street roundabout ? the travel route that concerns Mr. Brookins.

Where Plaintiffs have accepted the facts presented in the Traffic Report, and have not offered any expert opinion challenging the conclusions drawn from these facts by Ms. Pyke, I am once again left with only the speculative and unsupported personal opinion of Mr. Brookins that traffic in the area will worsen.

As Defendants successfully rebutted the presumption of Plaintiffs’ aggrievement on the basis of traffic and parking impacts, however, speculation alone is insufficient to support Plaintiffs’ claims that they are aggrieved due to adverse parking and traffic impacts resulting from the Proposed Development. Accordingly, Plaintiffs lack standing to challenge the Variance Decision on that basis.

Noise Impacts

As abutters, Plaintiffs are presumed to be aggrieved on the basis of noise impacts generated by the Proposed Development. However, Defendants rebutted that presumption by offering the expert testimony of Gregory Tocci, who conducted an environmental sound study of the projected noise impacts of the Proposed Development on the surrounding area. Mr. Tocci opined that the acoustic impact of the Proposed Development would be negligible and that, even with the removal of the existing trees and foliage, the construction of the Proposed Development effectively results in a net-zero change in current community sound levels. [Note 5] Mr. Tocci’s Report concluded that the Proposed Development would act essentially as a sound barrier to traffic noise produced on Terrace Street, and would actually result in a reduction of noise levels on Parker Street by approximately 0-8 decibels (dBA). For example, the 0-8 dBA reduction in noise from traffic on Terrace Street could entirely counteract the approximately 0-2 dBA noise increase (which itself Mr. Tocci opined was negligible) expected to be produced by the additional traffic generated by the Proposed Development. [Note 6] Mr. Tocci further concluded that all building mechanical and electrical systems will likely be inaudible at all locations in the neighborhood most hours of the day, and that even assuming a worst-case scenario of all ventilation units running simultaneously, the noise produced would be 49 dBA, which level is currently being exceeded by the existing community noise levels 92% of the time.

Defendants’ expert evidence warrants a finding contrary to the presumed fact of aggrievement on the basis of noise impacts, thereby causing the burden to shift to Plaintiffs to present credible evidence to the contrary. Ultimately, however, Plaintiffs offered only the speculative personal opinion of Mr. Brookins. [Note 7] Mr. Brookins testified that he expected to experience more noise on his properties once the Proposed Development was built because the mature row of trees currently on the Parker Street side of the Project Site closest to his properties would be removed and replaced with trees of unknown types and maturity. Plaintiffs offered no expert testimony or other credible evidence to support Mr. Brookins’ conclusion or controvert Mr. Tocci’s testimony.

I find that Defendants successfully rebutted Plaintiffs’ presumption of aggrievement through credible, expert testimony that the Proposed Development will generate no increased noise impacts on the Brookins Defendants’ properties. Plaintiffs, however, failed to carry their burden to produce any credible, non-speculative evidence to the contrary. Accordingly, I find that Plaintiffs lack standing to challenge the Variance Decision on the basis of aggrievement due to noise impacts.

Property Value Impacts

Finally, Plaintiffs assert that they are aggrieved by the Board of Appeal decision because the Proposed Project will adversely impact the values of their properties. More specifically, Plaintiffs contend that the Proposed Development will inhibit appreciation of their properties’ values. Defendants successfully rebutted the Plaintiffs’ presumption of aggrievement on this basis by offering the expert testimony of John A. Regan, who opined that the Proposed Development would have no adverse impact on the market value of Plaintiffs’ properties. Indeed, Mr. Regan’s data, which was accepted by Plaintiffs, revealed that homes in the Mission Hill neighborhood have been appreciating in value, even when they are adjacent to mid-size multi-family new construction projects. Mr. Regan also noted that Plaintiffs’ properties are likely to experience positive valuation impacts from completion of the Proposed Development, which will create a view from Plaintiffs’ properties of a community garden space with controlled-access and lighting, whereas the current view is of a contaminated, closed-access, dark, overgrown, vacant lot.

Because Defendants presented evidence warranting a finding contrary to the presumed fact, the burden shifted to Plaintiffs to produce credible, non-speculative evidence that their property values would be adversely affected in a way that is related to a zoning-protected interest. That is, Plaintiffs were not only required to demonstrate the factual basis for their aggrievement but were also required to show that the alleged harm to their property values is “derivative of or related to cognizable interests protected by the applicable zoning scheme.” Standerwick, 447 Mass. at 31-32. But Plaintiffs have neither shown that their property values will be diminished, nor that any alleged effects on their property values are tethered to a cognizable interest protected by zoning law.

Plaintiffs offered no expert testimony or other evidence with regard to present or projected values of their own properties or other properties in the neighborhood; nor did they offer any evidence with respect to the projected effect of the Proposed Development on property values. Instead they simply point to the facts outlined in Mr. Regan’s report and analysis to argue that, although the report indicates that Mission Hill properties have appreciated in value even when next to new, multi-family developments, “there was not as much [appreciation] as there was for all the other properties in that same neighborhood [not next to new developments].”

Plaintiffs, however, have cited no case law that would support finding an abutter aggrieved because his/her property value may not appreciate as much after development of a neighboring property. Zoning “‘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.” Kenner, 459 Mass. at 123 (quoting Tranfaglia v. Building Comm’r of Winchester, 306 Mass. 495 , 503-04 (1940)). Moreover, assuring a certain rate of appreciation on property is not a cognizable interest protected by the Boston Zoning Code. In Section 1-2, the Boston Zoning Code includes “conserv[ation of] the value of land and buildings” among its stated purposes. (Emphasis added.) The Code does not speak to assuring appreciation of land values. “To untether a claimed diminution in real estate values from an interest the zoning scheme seeks to protect would permit any abutter who claims that any change in property use would diminish the value of property to obtain standing to challenge a zoning decision.” Standerwick, 447 Mass. at 32.

Because Plaintiffs have failed in their burdens to establish facts demonstrating an adverse effect of the Proposed Development on the values of their properties, and to tie their claimed aggrievement to a legally cognizable zoning interest, I find that Plaintiffs lack standing to challenge the Variance Decision on the basis of adverse impacts on their property values.

IV. CONCLUSION

Based upon the facts I have found, and for the reasons discussed, I find that the Plaintiffs have failed to show that they are persons aggrieved by the April 22, 2014 Variance Decision. Consequently, Plaintiffs lack standing to maintain this appeal and the case is DISMISSED. [Note 8]

Judgment to enter accordingly.