Plaintiffs Mark J. Bernardin, Nanette Conte, Isabelle Boulain, and Bernice Downs brought this action pursuant to G. L. c. 40A, §17, c. 41, §81BB, c. 185, §3A, c. 231A, §1, and c. 240, §14A challenging three decisions of the Andover Planning Board (the Planning Board) granting special permits for elderly housing and earth movement, and approving a definitive subdivision plan with waivers (collectively the Decisions). The Decisions all concern private defendant CSH Andover, LLCs (CSH) proposed residential subdivision and development of an assisted living community on property owned by Robert and Lisa Maye (the Mayes) in Andover. CSH has moved for summary judgment on the basis that the Plaintiffs are not persons aggrieved under G.L. c. 40A, § 17. Plaintiffs have filed a cross-motion for partial summary judgment. For the purposes of its motion, CSH gave each Plaintiff the benefit of the presumption afforded to parties in interest, as that term is defined in G.L. c. 40A, § 11. The Court finds that (1) although the Plaintiffs enjoy a presumption of standing as abutters, CSH has successfully rebutted that presumption; (2) the Plaintiffs claims based on detriment to the character of the neighborhood cannot serve as the basis of standing under G.L. c. 40A, § 17, or the Andover Zoning Bylaw because they are not special and different from the harms of the rest of the community; (3) the Plaintiffs have presented evidence supporting their allegations that the development will diminish their property values, thereby creating a genuine issue of material fact as to whether they have standing and rendering summary judgment inappropriate; and (4) given the dispute regarding Plaintiffs standing, this Court need not reach Plaintiffs cross-motion for summary judgment, which is denied.
Procedural History
Plaintiffs filed their Complaint on August 11, 2015, naming as defendants the Planning Board, members of the Planning Board, CSH, the Building Inspector of Andover, and the Mayes. The Complaint seeks declaratory relief and to annul the Planning Boards Decisions granting a special permit for elderly housing (Count I), a special permit for earth movement (Count II), and subdivision approval and waivers (Count III). On August 24, 2015, the defendants filed a Motion to Dismiss two members of the Planning Board, Steven Pouliot and James D. Doherty, as defendants in this action. The Planning Board filed its Answer on August 27, 2015. CSH filed its Answer on September 2, 2015. The defendants also filed a Motion to Dismiss the Andover Building Inspector as defendant on September 3, 2015. A case management conference was held on October 6, 2015 during which the Court allowed the Motions to Dismiss Steven Pouliot,
James D. Doherty, and the Building Inspector of Andover as defendants. Plaintiffs oral motion to add the Town of Andover (the Town) as defendant was also allowed.
On January 13, 2016, CSH filed its Motion for Summary Judgment and Memorandum in Support of CSHs Motion for Summary Judgment. On February 29, 2016, Plaintiffs filed a Motion for Partial Summary Judgment (Plaintiffs Cross-Motion for Summary Judgment), Brief in Opposition to Defendant CSHs Motion for Summary Judgment, and in Support of Plaintiffs own Motion for Summary Judgment, Plaintiffs Response Statement of Material Facts, Additional Facts, and Appendix, Plaintiffs Appendix in Support of Motion for Summary Judgment, along with affidavits from Mark Bernardin, Scott Robertson, Isabelle Boulain, Nanette Conte, and Bernice Downs. On March 22, 2016, CSH filed its Reply and Opposition to Plaintiffs Cross Motion for Summary Judgment and a Motion to Strike Affidavit of Scott Robinson (Motion to Strike). On March 29, 2016, Plaintiffs filed Plaintiffs Opposition to Motion to Strike Affidavit of Scott Robinson. CSHs Motion for Summary Judgment, Plaintiffs Cross-Motion for Summary Judgment, and the Motion to Strike were heard on March 30, 2016, and taken under advisement. This Memorandum and Order follows.
Motion to Strike
CSH has moved to strike the Affidavit of Scott Robinson on the grounds that he opines on matters beyond the scope of his expertise and personal knowledge. This objection goes more to the weight and credibility of his opinion than to its admissibility, and is a matter better left for trial. The Motion to Strike is denied.
Summary Judgment Standard
Generally, summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw all logically permissible inferences from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).
Undisputed Facts
For the purposes of deciding this motion for summary judgment, the following facts are undisputed or are inferred in the Plaintiffs favor:
1. Plaintiff Mark J. Bernardin, together with his wife, owns and lives in a house located at 140 Elm Street, Andover. Memorandum in Support of CSHs Motion for Summary Judgment (Def. Mem.) ¶ 11, Exhibit (Exh.) A; Plaintiffs Response to Statement of Material Facts, Additional Facts, and Appendix (Pl. Facts) ¶ 11.
2. Plaintiff Nanette Conte, together with her husband, owns and lives in a house located at 134 Elm Street, Andover. Def. Mem. ¶ 12, Exh. A; Pl. Facts ¶ 12.
3. Plaintiff Isabelle Boulain, together with her husband, owns and lives at 133 Elm Street, Andover. Def. Mem. ¶ 13, Exh. A; Pl. Facts ¶ 13.
4. Plaintiff Bernice Downs, together with her husband, owns and lives at 147 Elm Street, Andover. Def. Mem. ¶ 14, Exh. A; Pl. Facts ¶ 14.
5. Defendant CSH is a foreign limited liability company, organized in Delaware on June 18, 2014, and registered in Massachusetts on December 19, 2014, with a principal office at c/o Capitol Seniors Housing, 1275 Pennsylvania Avenue, Second Floor, NW, Washington, DC, 20004. Def. Mem. ¶ 2, Exh. A; Pl. Facts ¶ 2.
6. CSH proposes to build a 96-unit assisted living community (the Project) on the property located at 139-143 Elm Street and 26 Pine Street in Andover (the Subject Property). Most of the Subject Property is located in the Single Residence B (SRB) zoning district under the Andover Zoning Bylaw (bylaw). Def. Mem. ¶ 3, Exh. A; Pl. Facts. ¶ 3.
7. The Mayes own the Subject Property and reside at 139 Elm Street, Andover. Def. Mem. ¶ 4, Exh. A; Pl. Facts ¶ 4.
8. The Plaintiffs are abutters to the Subject Property. Def. Mem. ¶ 15; Pl. Facts ¶ 15.
9. In October 2014, CSH filed an application for the issuance of a special permit for the Project pursuant to § 7.4 of the bylaw, which governs all types of elderly housing. Def. Mem. ¶ 5, Exh. B; Pl. Facts ¶ 5.
10. Special permits for elderly housing are granted pursuant to § 9.4 of the bylaw. Section 9.4.2 states:
Special permits may be granted when the SPGA has found that the proposed use will not be unreasonably detrimental to the established or future character of the neighborhood and town and that such is in harmony with the general purpose and intent of this by-law. In addition to any specific factors that may be set forth in this by-law, the determination shall include consideration of each of the following:
1. Social, economic, or community needs which are served by the proposal;
2. Traffic flow and safety, including parking and loading;
3. Adequacy of utilities and other public services;
4. Neighborhood character and social structures; and
5. Impacts on the natural environment, including, but not limited to, air and water pollution, noise, stormwater runoff, and aesthetics.
Def. Mem. ¶ 6, Exh. E; Pl. Facts ¶ 6.
11. In May 2015, CSH filed for a special permit for earth movement under § 6.3.2 of the bylaw. Section 6.3.2 states, in relevant part, that a special permit from the Planning Board shall be required (1) for any earth movement undertaken in connection with the construction of streets in a subdivision, or (2) for earth movement associated with the preparation of lots in a subdivision. Def. Mem. ¶ 7; Pl. Facts ¶ 7.
12. Also in May 2015, CSH filed an application for definitive plan approval (the Plan) for the subdivision of the Subject Property. The Plan would divide the 10.07 acres of the Subject Property into three parcels: Lot 1 consisting of approximately 0.7 acres, Lot 2 consisting of approximately 9.01 acres, and Lot 3 consisting of .36 acres with a cul-de-sac roadway. Def. Mem. ¶ 8, Exh. A; Pl. Facts ¶ 8.
13. On July 23, 2015, after a duly noticed public hearing was held and closed, the Planning Board filed its written Decisions granting a special permit for elderly housing, a special permit for earth removal, and approval of the Plan. Def. Mem. ¶ 9, Exhs. B-D; Pl. Facts ¶ 9.
14. On August 11, 2015, the Plaintiffs filed this action appealing the Decisions with this Court. Def. Mem. ¶ 10, Exh. A; Pl. Facts ¶ 10.
15. Plaintiffs deposition testimony expressed concerns that they will suffer harm due to the Projects lighting, noise, traffic, inadequate stormwater management, and potential blasting. They assert that the Project will degrade the character of their neighborhood and diminish their property values. Def. Mem. ¶¶ 17-24, Exhs. F-I; Pl. Facts ¶¶ 17-24; Plaintiffs Brief in Opposition to Defendant CSHs Motion for Summary Judgement, and in Support of Plaintiffs Own Motion for Summary Judgment (Pl. Opp.) pp. 5-6.
16. On January 13, 2016, CSH filed a motion for summary judgment arguing that the Plaintiffs lacked standing to appeal the Decisions. In support of its motion, CSH filed a series of affidavits intended to address the various injuries that Plaintiffs identified in their depositions.
17. On February 29, 2016, Plaintiffs filed an opposition to CSHs motion and the Plaintiffs cross motion for partial summary judgment on Count I (Special Permit for Elderly Housing) and Count III (Subdivision Approval and Waivers) of their Complaint.
18. In their opposition and cross-motion Plaintiffs limited their grounds of aggrievement to a claim that they will suffer direct injury to two interests protected by the bylaw: (1) the construction of the project will be unreasonably detrimental to the established character of their neighborhood, changing it from purely residential to a mixed use neighborhood with a large commercial use and structure; and (2) they will suffer a diminution of their property values based on certain elements of the project, including lighting, noise, traffic, and degradation of a residential neighborhood into a mixed use neighborhood. Def. Mem. ¶¶ 23-24; Pl. Facts ¶¶ 23-24; Pl. Opp. pp. 5-6.
19. CSHs summary judgment and reply submissions provided evidence of non- aggrievement with respect to these two grounds of standing. This evidence includes affidavits given by (a) a landscape architect, Christian Huntress (Huntress); (b) a traffic engineer, Kenneth Cram (Cram); (c) an acoustical engineer, Christopher Menge (Menge); (d) an urban planner, Dr. John Mullins (Mullins); and (e) a licensed appraiser, Mark Reenstierna (Reenstierna). Def. Mem. ¶¶ 25-60, 81-99, Exh. J, K, L, O, P.
20. In his affidavit, Huntress represents that his firm prepared plans for the Project and reviewed the proximity of abutting residential properties. To reduce effects from the Project on neighbors, Huntress attests that he provided buffering and screening with hundreds of trees and shrubs throughout the site along its boundaries. In addition, Huntress states that he reduced the number of lighting poles on the Property and added hooded covers to reduce light spill and glare to abutting properties. He opines that these design changes, when implemented, will prevent or reduce light or glare impacts to the Plaintiffs from the Project. Def. Mem. ¶¶ 25-34, Exh. J.
21. Cram, the Director of Traffic Engineering with Bayside Engineering, prepared a Traffic Impact and Access Study (TIAS) for the proposed Project. Based on the TIAS, Cram contends in his affidavit that the assisted living community would not significantly increase traffic volumes, exacerbate existing delays, or result in harm to pedestrians or other motorists. Def. Mem. ¶¶ 50-60, Exh. L.
22. The Menge affidavit provides a prediction of potential noise impacts from the construction and operation of the Project. Menge explains how he used the Federal Highway Administrations official Roadway Construction Noise Model to compute the expected sound levels from these activities at the nearest abutters properties and compared it to existing road traffic noise using the TIAS report prepared by Cram and Bayside Engineering. Menge asserts that the increase in noise from the Project would be de minimis and not a significant impact to surrounding areas. Def. Mem. ¶¶ 35-49, Exh. K.
23. Mullins affidavit is intended to dispel the notion that the Project would degrade the neighborhood character. Mullins reached this conclusion by relying on his experience in current planning practices and his assessment of the Projects neighborhood. According to Mullins analysis, the Project is in character with the size, height, and design of other buildings found throughout the Town. In his opinion, the neighborhood has an extensive mixture of historic and contemporary buildings and the proposed Project is in harmony with this character. Def. Mem. ¶¶ 81-95, Exh. O.
24. Reenstierna attests to having been qualified as an expert on the issue of property valuation. He has been a certified real estate appraiser for more than twenty years. In his affidavit, he contends that he gathered information on existing assisted living facilities in nearby towns and researched transfers of all single-family residential dwellings within a half mile of each facility, both before and after development. He asserts that the data shows that development of these facilities did not cause a diminution of the market value of neighboring properties, but that the values of the properties reacted to normal market forces. Reenstierna opines that the Project would not have a detrimental impact on the value of the Plaintiffs properties. Def. Mem. ¶¶ 96-99, Exh. P.
25. In response to CSHs submissions, Plaintiffs filed their own depositions, affidavits, and exhibits, and the affidavit of a real estate appraiser Scott Robertson (Robertson). As discussed more fully below, these materials are intended to proffer evidence supporting their claims of aggrievement. Pl. Facts, App. 1-3, 5; Deposition of Mark Bernardin (Bernardin Dep.) pp. 11-13, 16-17, 54-55, 79-81, 100-102; Deposition of Nanette Conte (Conte Dep.) pp. 10-11, 26-32; Deposition of Bernice Downs (Downs Dep.) pp. 15, 19- 20, 23-24; Deposition of Isabelle Boulain (Boulain Dep.) pp. 14-17; Pl. Facts, App. 3, Affidavit of Scott Robertson (Robertson Aff.) ¶¶ 1-4.
Discussion
CSH has moved for summary judgment on the ground that Plaintiffs lack standing under G.L. c. 40A, §17, to challenge the Decisions granting their special permits and subdivision approval to build an assisted living community at the Subject Property. Plaintiffs have filed an opposition as well as a cross motion for partial summary judgment on the merits of two of their claims: Count I (Special Permit for Elderly Housing) and Count III (Subdivision Approval and Waivers) of their Complaint. Before proceeding to the merits of this dispute, the issue of standing must be addressed, because if the Plaintiffs lack standing to appeal the Decisions it would deprive this court of jurisdiction. Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 703 (1998) (Standing is an issue of subject matter jurisdiction.); Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 687 (1994) (subject matter jurisdiction is a prerequisite to judicial review).
In order to have standing to challenge the issuance of the Decisions, Plaintiffs must be person[s] aggrieved by the Decisions. G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011); Planning Bd. of Marshfield, 427 Mass. at 702-703. 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). For the purposes of its motion, CSH gave each Plaintiff the benefit of the presumption afforded to parties in interest, as that term is defined in G.L. c. 40A, § 11. Therefore, they are entitled to the presumption that they are aggrieved.
In the zoning context, a defendant can rebut an abutters presumption of standing at summary judgment 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. at 703. [T]he defendant may present affidavits of experts establishing that an abutter's allegations of harm are unfounded or de minimis. Id., citing Kenner, 459 Mass at 119120; Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 2324 (2006). A defendant need not present affirmative evidence that refutes a plaintiffs basis for standing. It is enough that the moving party demonstrate by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving a legally cognizable injury. Standerwick, 447 Mass. at 35, quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991).
Through CSHs summary judgment submissions, as enumerated previously, it has supplied the court with five expert affidavits that contest Plaintiffs claims of aggrievement as to the degradation of character of the neighborhood and the diminution of value. See Def. Mem. ¶¶ 25-60, 81-99, Exh. J, K, L, O, P. These submissions effectively rebutted Plaintiffs presumption of standing.
Thus rebutted, the presumption recedes. Tsagronis v. Bd. of Appeals of Wareham, 33 Mass. App. Ct. 55 , 58 (1992). Once the presumption of standing has been rebutted successfully, the [Plaintiffs] have the burden of presenting credible evidence to substantiate the allegations of aggrievement, thereby creating a genuine issue of material fact whether the [Plaintiffs have] standing and rendering summary judgment inappropriate. 81 Spooner Rd., 461 Mass. at 703, n.15, citing Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 519-521 (2011). In other words, Plaintiffs bear the burden to present evidence that would establish that they will suffer some direct injury to a private right, private property interest, or private legal interest as a result of the Planning Boards Decisions that is special and different from the injury the Decisions would cause to the community at large, and that the injured right or interest is one that Chapter 40A or the bylaw 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. 435 , 440-441 (2005); Barvenik v. Board of Alderman of Newton, 33 Mass. App. Ct. 129 , 132-135 (1992). [T]he analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be impacted by such changes. Kenner, 459 Mass. at 122. Aggrievement is not defined narrowly; however, it does require a showing of more than minimal or slightly appreciable harm. Id. at 121-123 (finding the height of the new structure to have a de minimis impact on plaintiffs ocean view).
Plaintiffs first allege that they will suffer harm due to the degradation of neighborhood character caused by the Project. In support, Plaintiffs present their own deposition testimony. Plaintiffs all testified that it was their opinion that the size, height, and design of the facility did not fit with the surrounding houses and buildings. Bernardin Dep. pp. 11-13, 54-55; Conte Dep. pp. 30-32; Downs Dep. pp. 19-20; Boulain Dep. pp. 14-17. They stated that the Project was unsuitable given the historic nature of the community and expressed concerns about how the historic qualities would be impacted. Bernardin Dep. pp. 16-17, 79-81; Conte Dep. pp. 10-11, 30; Downs Dep. pp. 15; Boulain Dep. pp. 14-17. They also testified about the commercial nature of the Project and how the Projects use as an assisted living community was inappropriate for a residential neighborhood. Bernardin Dep. 11-13, 54-55, 100-102; Downs Dep. pp. 19-20, 23-24; Conte Dep. pp. 26-32.
In addition to the Plaintiffs own testimony, they provide three letters sent to the Planning Board. The first letter was sent by a licensed architect, Daniel Eldridge (Eldridge). Pl. Facts, Appendix (App.) 1. In Eldridges letter, he states that in his opinion the Project would not preserve the towns residential character, it would transform the Elm Street Neighborhood from a residential zone area into a de facto mixed use area, and would be unreasonably detrimental to the established character of the Elm Street Neighborhood. Pl. Facts, App. 1. In the second letter, Susan Donahue (Donahue), a licensed real estate broker, states that the proposed assisted living community will impact the character of the Elm Street Neighborhood. Pl. Facts, App. 1. The final letter, an email sent by Craig Gibson (Gibson) on behalf of the members of the Andover Design Review Board, asks the Planning Board to reject the application for a special permit. Gibson writes [w]hile the developer has made stylistic improvements to the buildings appearance since the initial proposal, we believe that the project, because of its enormity, will be detrimental to the character of the neighborhood. Pl. Facts, App. 1.
Degradation of neighborhood character, even if proven, generally cannot confer standing. Concerns for aesthetic appearance or neighborhood character do not furnish standing under § 17. Those matters lie outside the zone of concern of zoning under G. L. c. 40A, the Zoning Act. Matthews v. Zoning Bd. of Appeals of Wakefield, 71 Mass. App. Ct. 449 , 451 (2008) (assertions of stigma and change in neighborhood character, the judge found, amounted to little more than the kind of undifferentiated fear and apprehension that is insufficient to confer standing); Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 213 (2003) (aesthetic deterioration may or may not be deemed specific and personal to [the petitioner], but, in either event, such a subjective concern is beyond the scope of interests protected by the Zoning Act); Barvenik, 33 Mass. App. Ct. at 133 (possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close neighborhood feeling, or the loss of open or natural space are all considered insufficient bases for aggrievement under Massachusetts law).
However, where a municipalitys zoning bylaw specifically provides that the special permit granting authority should take into consideration the impacts of a proposed structure that are not protected under the Zoning Act, this defined protected interest may impart standing. Kenner, 459 Mass. at 120 (visual impact). Where the protected impact is to a neighborhood interest as opposed to a personal interest, courts have consistently required a plaintiff seeking standing on such grounds to show both a particularized harm to that interest with respect to their own property and a detrimental impact on the neighborhoods character generally in order to qualify as an aggrieved party. Id. at 120-121; Monks, 37 Mass. App. Ct. at 688 (for summary judgment purposes, standing conferred on plaintiffs to challenge issuance of special permit for construction of 190 foot tower where Plymouth zoning bylaw provided that proposed structure could not in any way detract from visual character or quality of neighborhood, and plaintiffs established direct visual impact of proposed tower not only to their own homes, but also on neighborhood).
Section 9.4.2 of the bylaw requires the Planning Board to consider neighborhood character when deciding whether to issue a special permit for elderly housing. While the Plaintiffs have presented evidence of harm to the general character of the neighborhood, they have not put forth specific factual support that connects the alleged harms of the Project, with regard to its scale, siting, or mass on the neighborhoods visual character, to their own properties. In their depositions, Plaintiffs expressed concerns only over how the Project would upset the neighborhoods conformity as a historical, residential neighborhood. Moreover, they rely primarily on their own opinions and present limited evidence in the form of three letters sent to the Planning Board from Eldridge, Donahue, and Gibson opining that the assisted living community will have a detrimental impact on the character of their neighborhood. Even crediting the opinions stated in the letters, because Plaintiffs failed to allege aggrievement to their own properties with any particularity, these concerns are insufficient to confer standing.
Plaintiffs also allege that the Project will diminish the value of their properties. Diminution in the value of real estate is a sufficient basis for standing only where it is derivative of or related to cognizable interests protected by the applicable zoning scheme. Standerwick, 447 Mass. at 31-32; see Kenner, 459 Mass. at 120. 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. Building Comm'r of Winchester, 306 Mass. 495 , 503504 (1940). 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. Kenner, 459 Mass. at 123-124, quoting Standerwick, 447 Mass. at 32.
To tether their claim of diminution of value to an otherwise legitimate zoning interest, Plaintiffs offer not only their own opinions as home owners, but also the affidavit of real estate appraiser Robertson. In his affidavit and attached study, Robertson states that he is a Massachusetts certified real estate appraiser and owner of Robertson Appraisal, LLC. Robertson Aff. ¶ 1. Robertson declares that the proposed Project would impact the Plaintiffs property values in several ways, including by not limited to: increased traffic, emergency vehicle activity at increased intervals, delivery trucks (potentially at early hours), as well as background noise and smells from daily operations such as cooking and HVAC. Robertson Aff. ¶ 3. Based on these harms, he contends that the development of the project as approved will have a negative impact on the value of the plaintiffs real estate values, causing a 10.4% decrease in the property value of direct abutters of the project if built. Robertson Aff. ¶ 4. To determine the 10.4% reduction in value, Robertson states that he first identified similar properties that were adversely affected by their proximity to a commercial use. Robertson Aff. ¶ 3. Robertson analyzed the impacts to the value of three newly developed single family properties from an adjacent, recently constructed fire station in North Andover. Robertson Aff. ¶ 3. He states that [a] fire station would have similar external influences on abutters as an assisted living community including illumination, noise and off hour traffic. Robertson Aff. ¶ 3. His analysis concluded that the impact of commercial influence on property values is significant.
Additionally, Plaintiffs rely on the letter from Donahue, a licensed real estate broker, who also contends that the Project will negatively impact the value of neighboring properties. Pl. Facts, App. 1. In the letter, Donahue attests that the neighborhood, as it currently exists, is attractive to buyers because it hosts no visible commercial or institutional uses, such as schools, churches, or professional offices, which is important, because perceptions and the feel of a neighborhood matter, a great deal. Pl. Facts, App. 1. Donahue contends that negative impacts such as 24 hour activity, lighting, and commercial vehicles will reduce the amount that consumers are willing to pay for properties in the surrounding areas. These negative impacts, Donahue asserts, will only be heightened by the characteristics of the lot the developer has chosen and [h]aving such a large building on top of prominent hill will magnify its negative impact, causing the Project to become the central, defining feature of the neighborhood. Pl. Facts, App. 1. Donahue estimated that the Project would decrease adjacent property values anywhere from $10,000 to $100,000 per home, depending on location. Pl. Facts, App. 1. She also stated that she consulted with several other local realtors who confirmed her conclusions. Robertsons affidavit and Donahues letter are evidence of the Plaintiffs allegations that the Project will diminish their property values and that this diminishment in value is due to the Projects negative effect on neighborhood character.
Reenstiernas affidavit challenges the validity of Donahues letter, stating that her conclusions are unfounded and her representation of the neighborhood is misleading. Def. Mem. Exh. P, ¶¶ 15-16. He states that Elm Street is a busy road, anchored by the commercial center of Andover Center. Commercial offices and retail space, Reenstierna asserts, are less than a half mile away and the neighborhood includes multi-family dwellings, offices, commercial properties, and is home to Merrimack College. Def. Mem. Exh. P, ¶16. He contends that Donahue provides no basis for her opinion of the value of nearby properties and her assessment is not objective, especially in light of the fact that in Donahues letter she admits to holding a bias towards the Subject Property. Def. Mem. Exh. P, ¶ 16. Further, in its Reply and Opposition to Plaintiffs Cross Motion for Summary Judgment (Def. Opp.), CSH argues that the method employed by Robertson inappropriately equates a fire station to an assisted living community without knowledge of their similarities or differences. Def. Opp. pp. 9-10. CSH states that Robertson is unqualified to testify as to traffic, illumination, emergency vehicle activity, delivery trucks, noise, and smell. Def. Opp. pp. 9-10. Robertsons affidavit and Donahues letter clearly differ from Reenstiernas affidavit. Between them, there is a genuine dispute of material fact as to whether, as a result of the Decisions, the Project has a substantial likelihood of diminution of Plaintiffs property values. This disagreement renders summary judgment inappropriate.
Plaintiffs have met their burden of presenting credible evidence to substantiate [their] allegations of aggrievement, thereby creating a genuine issue of material fact whether [they have] standing and rendering summary judgment inappropriate. 81 Spooner Road, LLC, 461 Mass. at 703 n.15. In viewing the evidence in the light most favorable to the nonmoving party, the Plaintiffs, this court cannot find as a matter of law that CSH is entitled to judgment pursuant to Mass. R. Civ. P. 56. Accordingly, since it is disputed whether Plaintiffs have standing based on diminution of their property value, this Court will not reach the merits of Plaintiffs cross motion at this time.
Conclusion
Based upon the foregoing analysis, the Motion to Strike is DENIED, CSHs Motion for Summary Judgment is DENIED, and Plaintiffs Cross Motion for Summary Judgment is DENIED.
SO ORDERED
MARK J. BERNARDIN, NANETTE CONTE, ISABELLE BOULAIN, and BERNICE DOWNS v. ANDOVER PLANNING BOARD, ZACHARY BERGERON, VINCENT CHIOZZI, JOAN DUFF, and ANN KNOWLES, as members of the Planning Board, and CSH ANDOVER, LLC, and ROBERT J. MAYE and LISA H. MAYE, and TOWN OF ANDOVER.