JANICE COADY vs. ROGER PUTNAM, THEODORE HEYLIGER, MICHAEL LYNCH, SHARON INGER, DON PALLADINO, BRUCE DRUCKER, VERNON JACOB, WILLIAM NICHOLSON, and TREVOR PONTBRIAND, Members of the BOARD OF APPEALS OF THE TOWN OF WELLFLEET, THE TOWN OF WELLFLEET, FREDERICK BROMBERG, and LAUREN BROMBERG.

This action is a dispute between neighbors whose beachfront properties are located in the picturesque Indian Neck neighborhood of Wellfleet, overlooking Wellfleet Harbor. The genesis of this dispute was a 2014 sale by Plaintiff Janice Coady ("Mrs. Coady") (through an LLC that she and her husband managed) to Defendants Frederick and Lauren Bromberg (the "Brombergs") of property located at 195 Samoset Avenue in Wellfleet (the "Bromberg Property"), which, to that point, had been used as a rental property, and which is located next door to and downhill from Mrs. Coady's property at 205 Samoset Avenue in Wellfleet (the "Coady Property"). The following year, when the Brombergs sought (and obtained) approvals from all relevant local and state authorities to redevelop their newly-acquired beachfront property, Mrs. Coady filed suit against her new neighbors to oppose that move.

To that end, Mrs. Coady commenced this appeal by filing an unverified Complaint on January 5, 2016, appealing, pursuant to G.L. c. 40A, § 17, a decision dated December 17, 2015 (the "ZBA Decision") issued by the Town of Wellfleet Zoning Board of Appeals (the "ZBA"), which granted a special permit (the "Special Permit") to the Brombergs for their proposal (the "Project") to demolish a pre-existing, nonconforming dwelling (the "Existing Dwelling") on the Bromberg Property and to rebuild a new dwelling (the "New House") roughly in the same footprint as the Existing Dwelling. The ZBA Decision also granted the Brombergs an exemption (the "Floodplain Exemption") for the Project from certain floodplain regulations set forth in the Wellfleet Zoning Bylaw (the "Bylaw").

A case management conference was held on February 2, 2016. The parties appeared for status conferences on April 26, 2016, July 21, 2016, and September 6, 2016. The parties appeared for a pre-trial conference on November 21, 2016, at which the possibilities of resolving this case by either trial or by summary judgment were discussed. On December 22, 2016, the Brombergs filed a motion requesting that the case be set down for trial. At a telephone status conference held on January 10, 2017, the court scheduled the case for trial on February 6-8, 2017. A site view and the first day of trial (at the Orleans District Court) was held on February 6, 2017. The second day of trial was held at the Land Court in Boston on February 7, 2017, following which the trial concluded without need for a third day of testimony. Mrs. Coady filed her post-trial brief on April 4, 2017 and the Brombergs filed theirs on April 6, 2017. [Note 1] At that time the matter was taken under advisement. At trial, Mrs. Coady called two witnesses: Susan Glynn (real estate appraiser) ("Glynn") and Mrs. Coady's husband, Kevin Coady ("Mr. Coady"). Mrs. Coady also had intended to call David Bennett (environmental consultant) ("Bennett"), but he was unavailable to testify at trial, so his deposition transcript was submitted as an exhibit in lieu of live testimony by agreement of the parties. The Brombergs called five trial witnesses: Hillary Greenberg-Lemos (Wellfleet Health and Conservation Agent) ("Greenberg-Lemos"), Peter Haig (architect) ("Haig"), Linda Coneen (real estate appraiser) ("Coneen"), John O'Reilly (civil engineer) ("O'Reilly"), and Defendant Frederick Bromberg ("Mr. Bromberg") himself. The parties jointly submitted fifty-two exhibits into evidence.

Based on the sworn pleadings, the evidence admitted at trial, the parties' post-trial briefs, and the reasonable inference drawn therefrom, I hereby FIND the following material facts:

1. The properties at issue are located in the Indian Neck Heights area of Wellfleet, a promontory on the bay side of Cape Cod surrounded on three sides by Chipman's Cove and Wellfleet Harbor. The parties' properties are seaside, but at a high elevation with panoramic views overlooking Wellfleet Harbor, Great Island, and (at low tide) the tidal flats where the former Billingsgate Island lighthouse and community were located. The Coady Property is at the top of a hill, and thus also has partial views of several other neighborhoods in Wellfleet, including Lieutenant's Island to the south. Topographically, the parties' properties contain an upland area, which drops off sharply from a coastal ridge to the shores of Wellfleet Harbor below. Inland of the coastal ridge, the land slopes downward in the opposite direction from the shore, leading to Samoset Avenue, which runs southward along the drop in elevation and, in this area, is unpaved.

2. The Brombergs are the owners of the Bromberg Property, having purchased the same from Indian Neck, LLC (an entity managed by Mr. and Mrs. Coady) by deed dated September 25, 2014, which was recorded in the Barnstable County Registry of Deeds (the "Registry") at Book 28405, Page 70. [Note 2] The Bromberg Property is located in the Bylaw's "R1" zoning district, and is a pre-existing, nonconforming lot with an insufficient lot area of 8,880 square feet (30,000 square feet is required) [Note 3] and insufficient frontage on Samoset Avenue of sixty feet (135 feet is required).

3. The Existing Dwelling was built in or around 1961 and is the only structure presently existing on the Bromberg Property. [Note 4] It is a single-family, two bedroom, one bathroom residential structure with a footprint of 766 square feet. The interior of the Existing Dwelling has 746 square feet of habitable space on the ground level, 746 square feet of unfinished basement space, and front and rear ground floor decks totaling 384 square feet of space. The Existing Dwelling is a pre-existing, nonconforming structure with the following relevant dimensions:

Dimension Existing Dwelling Bylaw Requirements

Front Yard (east) 25.6 feet 30 feet (non-conforming) Rear Yard (west) 30+ feet 30 feet (conforming) [Note 5] Side Yard (north) 8.5 feet 25 feet (non-conforming)

Side Yard (south) 27 feet 25 feet (conforming)

Building Coverage 766 s/f (15.78%) 15% maximum (non-conforming) [Note 6]

Building Elevation 40.7 feet 52.7 feet maximum (conforming) [Note 7]

Floor Area Ratio N/A No requirements

4. Mrs. Coady was, until early 2017, the owner of the Coady Property, which abuts the Bromberg Property to the north. Mrs. Coady took title to the Coady Property (which is registered land) by deed dated September 30, 1993, registered in the Registry as Document 594650 under Certificate of Title 131534. [Note 8] The Coady Property is developed with a multi-story, single-family dwelling. Due to the topography of the area, the Coady Property sits at a significantly higher elevation than the other properties in the area, including the Bromberg Property.

5. The Project, as currently proposed by the Brombergs, [Note 9] is to raze the Existing Dwelling and replace it with the New House, which would remain a single-family, two bedroom residential structure, but would add a second story, a second full bathroom, and an additional half bath. Its footprint and height would increase, and it would have 2,259 square feet of habitable space on two levels. Its lower level would contain unfinished storage, laundry, utilities space, and a single car garage. The New House would also have a ground floor detached patio (the "Patio") in the same location as the Existing Dwelling's current rear deck, and would have a new second floor (ocean facing) master bedroom deck. [Note 10] The New House will meet the Bylaw's requirement of providing at least two off-street parking spaces. The following are the relevant dimensional details of the New House, as currently proposed:

Dimension Existing Dwelling New House Change Bylaw Requirements

Front Yard (east) 25.6 feet 25.5 feet +0.1 feet 30 feet (less non-conforming)

Rear Yard (west) 30+ feet 30+ feet N/A 30 feet (equally conforming) [Note 11]

Side Yard (north) 8.5 feet 8.5 feet N/A 25 feet (equally non- conforming)

Side Yard (south) 27 feet 25.2 feet -1.8 feet 25 feet (less, but still conforming) Building Coverage 1,066 s/f (15.45%) 21.96% 6.18% 15% maximum (more nonconforming [Note 12]

Building Elevation 40.7 feet 48.7 feet +8 feet 52.7 feet maximum (higher, but still conforming) [Note 13]

Floor Area Ratio N/A N/A N/A No requirements

6. The Project has been approved by the Wellfleet Board of Health (the "Board of Health") in a letter dated July 22, 2015. That letter of approval "found the plan to be in compliance with the previously issued Declaration of Restrictive Covenants [dated September 2, 2005 and recorded in the Registry at Book 20268, Page 153 (the "Restrictive Covenant")]." [Note 14]

7. The Restrictive Covenant was granted by a prior owner of the Bromberg Property for the benefit of the Board of Health "[a]s a condition to receiving approval of requested variances for the installation of a septic system from the Town of Wellfleet, acting by and through its Board of Health." It requires as follows: (a) maximum daily "design flow" of 225.2 gallons to serve a structure with no more than two bedrooms, (b) any increase in the habitable space on the Bromberg Property requires Board of Health approval, (c) "[t]he well water shall be tested and found potable, with results copied to the Health Department, prior to issuance of Disposal Works Permit", (d) "[a]ny restriction in design flow and all restrictions shall be recorded against the deed for the property at the Registry in Barnstable, and proof of deed recording shall be submitted to the Health Department prior to the issuance of the Disposal Works Permit", and (e) the septic system must be inspected and tested on a periodic basis. [Note 15]

8. In 2015, O'Reilly, acting on behalf of the Brombergs, applied to the United States Federal Emergency Management Agency ("FEMA") for a change in the classification of the Bromberg Property under FEMA's National Flood Insurance Program (NFIP) regulations -- i.e., to move the developed, upland area of the Bromberg Property outside of the areas designated by FEMA as the Special Flood Hazard Area (SFHA) and the Coastal High Hazard Area (CHHA). [Note 16] By letter to the Wellfleet Board of Selectmen dated August 14, 2015 (the "FEMA Letter") [Note 17], FEMA denied the Brombergs' request, stating as follows:

The property is correctly shown on the effective NFIP map as in the SFHA, designated Zone VE. [Note 18] The SFHA is an area that would be inundated by the flood having a 1% chance of being equaled or exceeded in any given year (base flood). [Note 19]

* * *

The lowest lot elevation within the metes and bounds description must be at or above the base (1% annual chance) flood elevation (BFE) for the portion of property to be removed from the SFHA. Because the lowest lot elevation [of the Bromberg Property] within the meters and bounds description, 27.9 feet, is lower than the BFE, 29.0 feet, as shown on the effective NFIP map panel, the portion of property structure is within the CHHA and SFHA. [Note 20]

9. On October 29, 2015, the Wellfleet Conservation Commission (the "ConCom") issued an Order of Conditions, approving the Project. It was recorded in the Registry at Book 29407, Page 155.

10. On November 3, 2015, the Brombergs filed an application with the ZBA for (a) the Special Permit (pursuant to Section 6.1 of the Bylaw and G.L. c. 40A, § 6) to demolish the Existing Dwelling and replace it with the New House, and (b) the Floodplain Exemption (pursuant to Sections 6.13 and 6.14.1 of the Bylaw). Included with the Brombergs' application package were, among other documents, a site plan showing existing conditions (the "Existing Conditions Site Plan"), two site plans showing the Project annotated for zoning and conservation regulations (the "Zoning Site Plan" and "Conservation Site Plan") , and floor plans (the "New House Floor Plans") and elevation drawings of the New House (the "New House Elevations"). [Note 21] [Note 22]

11. Notice of the public ZBA hearing on the Brombergs' application was published in the Cape Codder on November 13 and 20, 2015, posted in the Wellfleet Town Hall from November 20, 2015 through December 3, 2015, and mailed to all abutters and parties in interest on November 4, 2015. The ZBA held its public hearing on December 3, 2015, at which the ZBA voted to unanimously approve both the Special Permit and the Floodplain Exception. The ZBA issued its formal ruling on the Brombergs' application in the ZBA Decision, which was dated December 17, 2015. The ZBA Decision was filed with the Wellfleet Town Clerk, and notice of that filing to abutters and parties in interest was issued on the same date. [Note 23]

12. With respect to the Special Permit, the ZBA Decision notes the Brombergs' previous withdrawn application, and that "[t]he Board felt the Brombergs' [new application] went further than the Board initially requested and were very happy with the proposal." It further notes that a letter from Mr. Coady, objecting to the Project, had been read into the record of the hearing. As for findings of fact on the Special Permit, the ZBA Decision provides as follows:

1) This is an application for a Special Permit under [Bylaw Section] 6.1 to demolish an existing dwelling on a pre-existing non-conforming lot and construct a new dwelling. And 2) a floodplain exemption pursuant to [Bylaw Sections] 6.13 and 6.14.1.

2) This is a prior existing, non-conforming lot and dwelling, having been built in 1961 according to the Assessor's office.

3) The [existing] non-conformities are lot area of 8,0aaaaa50 [sic: 8,880] square feet, street frontage of 60 feet, front and side yard setbacks and building coverage.

4) The building area will increase from 776 [sic: 766] square feet (15.45% [sic: 15.78%] lot coverage) to 1,066 square feet (21.9% [sic: 21.96%]) lot coverage. [Note 24]

5) Front and side setbacks are unchanged. [Note 25]

6) There is no change in use.

7) There will be no increase in use.

8) The project has been approved by the Wellfleet Conservation Commission, as well as the Wellfleet Board of Health.

9) The coastal zone impact has been approved by FEMA. [Note 26]

10) As with all roads in older development, they are adequate for the area served.

11) Drainage impacts have been considered.

12) The propose[d] construction considerately treats scenic views from Samoset Road and developed properties.

With respect to the Floodplain Exemption, the ZBA made the following findings of fact:

1. The granting of an exemption will not result in increased flood heights, decreased flood storage capacity, additional threats to public safety, extraordinary public expense, cause fraud on or victimization of the public, or conflict with existing local laws since the new dwelling will be landward of the seawall and at the same elevation as the existing dwelling.

2. The new dwelling will comply in all respects with the State Building Code, including the requirements of Section 744.0 regarding flood zones.

3. The project complies in all respects with M.G.L. Chapter 131, s. 40, the Wetlands Protection Act, and the Town of Wellfleet's Environmental Protection Bylaw as evidenced by prior approval of an Order of Conditions by the Wellfleet Conservation Committee.

13. At trial, Mr. Coady testified regarding the alleged harms to the Coady Property. [Note 27] In particular, he testified that the view from the Coady Property of Lieutenant's Island (a residential area of Wellfleet located to the south of the parties' properties) would be diminished, and that the construction of the New House would result in a loss of privacy due to its north-facing windows. He also expressed concerns with respect to Samoset Avenue, noting that it requires periodic repair due to ongoing erosion, and that trucks sometimes get stuck due to its extreme uphill angle in this area. [Note 28] Mr. Coady further testified regarding his concerns with respect to the septic system on the Bromberg Property, noting that it had failed several times in the past due to (his) renters. [Note 29] He also claimed to be concerned about the quantity and quality of ground water (all the properties in the area are served by wells), and speculated that the New House will result in increased water use.

14. Mrs. Coady's real estate appraiser, Glynn, testified that the value of the Coady Property could be diminished by $220,000.00 to $300,000.00 as a result of the construction of the New House because of diminished views. [Note 30] To reach this conclusion, she employed a "paired sales" comparative analysis of three sales of other properties in the area, performed a site inspection, and reviewed site plans for the Project. [Note 31] However, on cross-examination, she stated that she had never undertaken a paired sales analysis to assess possible impacts upon property value based on loss of views. She also acknowledged that she is not licensed as a certified general appraiser, and is thus not able to certify the value of properties valued over $1,000,000.00.

15. Bennett testified for Mrs. Coady (in his deposition) with respect to potential environmental impacts of the New House--in particular, water quality and quantity. [Note 32] Bennett testified that the Indian Neck, due to its geology, is designated as a "sole source aquifer" area, which means that it depends for its fresh water supply on a single aquifer that is replenished only by rainfall. Due to this, he stated, the area has a fragile fresh water supply, as well as ongoing issues with saltwater intrusion and contaminants such as manganese and nitrogen. Bennett testified that the New House, because it would have additional water fixtures, could result in higher use of water, to the detriment of surrounding properties (which also depend on wells for their water). [Note 33] However, on cross-examination, Bennett admitted he did not perform any water well tests on the Coady Property or the Bromberg Property, nor any hydrogeologic or groundwater flow testing in the area of these properties. [Note 34]

16. Defendant Fred Bromberg testified on behalf of himself and his wife regarding their intentions surrounding the purchase of the Bromberg Property, which was to buy the property for land, raze the Existing Dwelling, and build the New House. He stated that he would not have purchased the property if he had been required to keep the Existing Dwelling. [Note 35]

17. Greenberg-Lemos, Health and Conservation Agent for the Town of Wellfleet, testified for the Brombergs regarding their septic system, and she confirmed that the Board of Health approved the Project based upon its compliance with all Title V requirements and the conditions of the Restrictive Covenant with respect to water quality and quantity.

18. Haig testified at trial for the Brombergs regarding the changes made to the design of the New House during the permitting process, which included reductions in height and area, removal of an additional deck, and various decorative and stylistic modifications, among others. In particular, he testified that the master bedroom deck of the New House was redesigned to ensure that no part of it was located in the VE flood zone, and that the previously-proposed ground floor deck was redesigned as an unattached patio (the Patio), which, he explained, "are not counted [for purposes of relevant flood zone regulations] in the same way as the structure."

19. O'Reilly is a professional engineer and land surveyor who testified for the Brombergs regarding the design of the New House and the relevant flood zones. [Note 36] He also testified that his former firm, Bennett and O'Reilly (where he partnered with Bennett, Mrs. Coady's environmental expert), was responsible for the design, permitting, installation, and initial inspection of the current septic system on the Bromberg Property. That system includes a septic tank with a MicroFAST Innovative Alternative (I/A) treatment system that drains to an adjacent leach field. [Note 37] The system is also equipped with an alarm that is triggered in the event of any malfunction, which sounds at the property, notifies Town officials, and prompts the Brombergs' servicing company to investigate and remedy any issues. O'Reilly also testified that he performed an inspection of the parties' properties to analyze loss of views. He stated that the Coady Property currently has largely unobstructed views of 190 degrees, with existing partial obstructions from foliage and the Existing Dwelling. He stated that the New House would impair this view by approximately twenty-one degrees, or about eleven per cent of its angle of view. The area of obstruction would be confined near the far left extreme of the field of view, and would not obstruct the Coady Property's water views or its evening sunset views in any way.

20. Coneen, the Brombergs' real estate appraiser, like Gylnn, conducted a paired sales analysis relative to the possible diminution in valuation of the Coady Property as a result of diminished views caused by the New House. [Note 38] In addition, she performed a physical inspection of the properties (including the inside of the Coadys' house and its vantage points) and reviewed site plans for the Project. To complete her analysis, Coneen went back fifteen years and considered at least ninety other properties. She ended up comparing the Coady Property against four other paired sales, which suggested a diminution in property value in the range of 2.4% - 5%. However, she stated that it was extremely difficult to quantify comparative property values based upon the sort of limited diminution of views at issue here, stating that "it was so speculative that it was very difficult to find even pairs [to serve as points of comparison]." [Note 39] For this reason, after tabulating the above-noted results, Coneen ended up overruling her own analysis (which, as noted, had suggested a diminution of value of 2.4% - 5%), concluding instead that she "[could not] quantify what the diminution would be, if any." She thus stated that she "wouldn't make an adjustment [to the value of the Coady Property] . . . [b]ecause the view is fantastic even with a house there. It's not going to make any difference to a buyer." [Note 40] On this point, she noted that valuation of property is always determined with a view to the buyer, and that "a homeowner's point of view [regarding the value of his or her own property] really has no impact or meaning . . . ."

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Mrs. Coady requests this court to vacate the ZBA Decision, arguing that it was arbitrary, capacious, and unreasonable for the ZBA to grant the Special Permit and Floodplain Exemption. She also claims that the ZBA failed to make adequate findings in the ZBA Decision regarding the propriety of the Special Permit and Floodplain Exemption pursuant to the provisions of the Bylaw. The Brombergs dispute this claim, arguing that the ZBA Decision meets all the requirements of the Bylaw for the Special Permit and Floodplain Exemption, and that the ZBA is entitled to deference in its interpretation of the Bylaw. They also claim that Mrs. Coady lacks standing to challenge the ZBA Decision. I shall examine each issue in turn, beginning with the threshold issue of standing.

Standing

Before getting to the merits of this case, I must address the Brombergs' challenge to Mrs. Coady's standing. The Brombergs claim that Mrs. Coady lacks standing to challenge the ZBA Decision because, they argue, Mrs. Coady was not "aggrieved" by the ZBA Decision. Mrs. Coady disputes this claim, arguing that she enjoys a presumption of standing, and that, in any event, she would be aggrieved by the Project based on deprivation of views, loss of privacy, traffic and parking congestion and impact to local roadways, environmental impacts to the local water supply, and loss of property value.

In G. L. c. 40A, § 17 zoning appeals such as this, "[o]nly a 'person aggrieved' may challenge a decision of a zoning board of appeals." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). While most would-be appellants under this Section must affirmatively demonstrate aggrievement, Green v. Bd. of Appeals of Provincetown, 404 Mass. 571 , 573 (1989), a party is presumed to be a "aggrieved" if she can demonstrate that she is a "party in interest", a term defined in G. L. c. 40A, § 11 as "the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list . . . ." Id.; Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986).

However, even if a party does enjoy this statutory presumption of standing, if an opposing party "offers enough evidence to warrant a finding contrary to the presumed fact, the presumption of aggrievement is rebutted, and the [party claiming standing] must prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 701 (2012). If that occurs, the party claiming standing then has the burden of proof to demonstrate aggrievement, that is to offer "direct facts and not [ ] speculative personal opinion [indicating] 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). The court must then decide the issue of standing "on the basis of all the evidence, with no benefit to the Plaintiff from the presumption of aggrievement." 81 Spooner Road, 461 Mass at 701.

Meeting this burden of proof requires demonstrating "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). Such a violation, as noted, must be "special and different from the concerns of the rest of the community." Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992); see also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (plaintiff's injury resulting from the board's decision must be "special and different from the injury the action will cause to the community at large"). [Note 41] Moreover, the "credible evidence" needed to substantiate a plausible claim of aggrievement must consist of:

both a quantitative and a qualitative component . . . . Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action. Conjecture, personal opinion, and hypothesis are therefore insufficient.

Butler, 63 Mass. App. Ct. at 441. Further, "[t]he adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 123 (2011). Thus, "the 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." Id.

In the present case, it is undisputed, and I thus FIND that Mrs. Coady, as a direct abutter to the Bromberg Property, is a party in interest under G.L. c. 40A, § 11, and is thus presumed to have standing--a presumption that the Brombergs have the burden of proof to rebut.

At trial, witnesses for the Brombergs testified that the construction of the New House would have a de minimis impact on the views from the Coady Property, that the New House would comply with all laws and regulations pertaining to its septic system and the local groundwater supply, that the New House would not unduly affect traffic or parking (or road conditions), and that the Project could not reliably be determined to have any significant impact on the value of the Coady Property.

All of this evidence would be sufficient "to warrant a finding contrary to the presumed fact [of Mrs. Coady's standing] . . . ." 81 Spooner Road, 461 Mass. at 701. As such, I FIND that the Brombergs have rebutted Mrs. Coady's statutory presumption of standing. She thus has the burden to establish standing on the basis of "direct facts and not by speculative personal opinion-that [her] injury is special and different from the concerns of the rest of the community." Standerwick, 447 Mass. at 33.

At trial, Mr. Coady testified regarding his concerns over potential harms that could occur if the New House were to be built. In particular, he testified that his views of Lieutenant's Island (an area of Wellfleet south of the parties' properties) would be obscured by the New House, resulting in a diminution of value of the Coady Property. [Note 42] Mr. Coady also discussed concerns over the potential environmental impact of the New House on the quantity and quality of the local drinking water, [Note 43] his fears that the Coady Property would suffer a loss of privacy due to north-facing windows on the New House, [Note 44] and potential parking, traffic, and roadway deterioration problems. [Note 45]

With the exception of his concerns regarding views, Mr. Coady's testimony was almost entirely speculative and based on his recollection of prior events that occurred when the Coadys owned the Bromberg Property and used it as a rental property. However, the fact that he allowed his renters to use the Bromberg Property in a way that posed a risk to the local water supply and led to parking and traffic problems has no bearing on how the Brombergs will use their property. In this regard, it is critical to note that the Project was approved by the Board of Health and the ConCom, and that the Brombergs' septic system is fully compliant with all relevant laws and regulations, as well as the Restrictive Covenant. Also, regarding parking, traffic, and roadway conditions, not only is the Bromberg Property fully compliant with the Bylaw's parking requirements, but there was no reliable evidence to suggest that the Brombergs' use of their property would generate any significant amount of traffic, nor that any damage to Samoset Avenue (past, present, or future) could be tied to the use of the Bromberg Property. [Note 46] Finally regarding privacy, Mr. Coady's testimony was conclusory and speculative, and amounted to little more than concern-mongering that the Brombergs might use their property to regularly hold large parties. [Note 47]

Supplementing Mr. Coady's testimony was the testimony of Bennett and Glynn. Bennett testified that the New House -- despite the fact that it would comply with all laws, regulations, and the Restrictive Covenant pertaining to its septic system -- could have a negative impact on the local ground water, both in terms of supply and quality. [Note 48] Further, Glynn testified that the Coady Property would have a diminished view as the result of the construction of the New House, and she opined that this would result in a significant loss of value to the Coady Property. [Note 49]

Although each of these issues was the subject of competing testimony from the Brombergs' expert witnesses, for purposes of standing:

[Mrs. Coady] is not required to prove by a preponderance of the evidence that [ ] her claims of particularized or special injury are true. Rather, [she] must put forth credible evidence to substantiate [her] allegations. . . . The idea of putting forth credible evidence of a particularized injury is equivalent to establishing a plausible claim of that injury: [t]he two phrases are simply different ways of expressing the same concept. A plaintiff makes a plausible claim of particularized injury by producing credible evidence of that injury. The threshold question whether [Mrs. Coady] has standing is different than the ultimate merit of [her] allegations. Thus, the relevant question was whether [Mrs. Coady] put forth credible evidence of a particularized injury to support her claimed status as a person aggrieved.

Hoffman v. Bd. of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804 , 809 (2009) (internal quotations and citations omitted). In other words, for standing purposes, Mrs. Coady's claims of harm must merely be credible, not necessarily successful. Kenner, 459 Mass. at 118 ("To do [otherwise] would be to deny standing, after the fact, to any unsuccessful plaintiff.").

Based on the evidence at trial, it is clear that Mrs. Coady has met this burden at least on the issue of diminished views. On this point, even the Brombergs' expert witness, O'Reilly, would acknowledge that the Coady Property will have diminished views, although he disagreed about how much of the view would be blocked and what impact that would have on the Coady Property. In other words, whereas the parties may disagree as to the extent or effect of the loss of view, it is beyond dispute that there will be some loss of view. As views are protected by the Bylaw, this suffices to raise at least a plausible (if not successful) claim of harm.

Mrs. Coady's other claimed harms fared less well, so I will discuss them only briefly. On the issue of lost privacy, as noted, the Bylaw's dimensional requirements pertaining to lot size, frontage, and setbacks already provide all the protection that is available, and the New House would leave these dimensional requirements unchanged, if not improved. Mr. Coady's testimony was the only admissible evidence on this issue, and it was insufficient to raise any "plausible claim" that the existing protections of the Bylaw are not perfectly adequate to protect his legal rights. Hoffman, 74 Mass. App. Ct. at 809.

Likewise, as to environmental impacts and traffic, parking, and roadway issues, the evidence presented indicates that the Project will be fully compliant with all relevant laws and regulations. As with her privacy concerns, the evidence presented by Mrs. Coady does not lead me to conclude that she has a plausible claim that these laws and regulations already in place do not provide adequate protections for all relevant concerns. More problematically, however, the evidence presented by Mrs. Coady as to these alleged harms makes clear that she has not articulated a plausible claim of a particularized injury to her that would be caused by the Project. Rather, her concerns were entirely speculative and based on past occurrences when the Bromberg Property was being used (by her own family) for an entirely different purpose (i.e., a full-time rental property) than how the Brombergs intend to use it (i.e., a seasonal private beach retreat). Moreover, Mrs. Coady was unable to tie these concerns specifically to the Bromberg Property or how the Brombergs would use it; rather, the evidence was clear that she was concerned about the impact that any development anywhere in the neighborhood would have on the neighborhood as a whole.

As to loss of property value, I simply found Mrs. Coady's expert appraiser (Glynn) not to be credible in her assessment of property value, especially in light of Coneen's opposing assessment. [Note 50] Having taken a site view, it is clear that Glynn vastly exaggerated the extent of the loss of view that the New House would cause, and her resulting conclusion as to loss of value thus is not credible. Likewise problematic was her methodology for reaching that estimate, which included a comparison to the Bromberg Property itself, which, as noted, is meaningfully different from the Coady Property in numerous ways. See discussion, supra, note 31.

In sum, because Mrs. Coady has at least raised a plausible claim of harm as a result of diminished views, if not her other claimed harms, I thus FIND that Mrs. Coady has met her burden of articulating a viable claim of aggrievement, and thus has standing to challenge the ZBA Decision. I thus turn to consider whether the ZBA acted properly in granting that decision.

Mrs. Coady's G.L. c. 40A, § 17 Appeal

As in any appeal under G.L. c. 40A, § 17, such as this, my task is to find the facts de novo, according no weight to the factual findings of the ZBA, and, upon those findings, to "affirm the [ZBA Decision] unless . . . [it] was based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) (quotation and citations omitted). This involves a two-step process, the first of which "involves an almost purely legal analysis and the [second] of which involves a highly deferential bow to local control over community planning." Id. at 73.

The first step is "an essentially legal analysis [as to] whether the [ZBA Decision] was based on a legally untenable ground, or, stated in a less conclusory form, on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws." Id. (quotation omitted). [Note 51] In the second step:

Assuming that the [ZBA] has drawn on proper criteria and standards, the court then must determine, on the basis of the facts it has found for itself, whether the [ZBA] has [ruled upon] the application by applying those criteria and standards in an unreasonable, whimsical, capricious or arbitrary manner. More specifically, . . . the question for the court is whether, on the facts the judge has found, any rational board could conclude that the addition or alteration the applicants propose would be substantially more detrimental to the neighborhood than the existing structure. [Note 52]

Id. at 74.

Mrs. Coady challenges the ZBA Decision in terms of its allowance of both the Special Permit and the Floodplain Exemption. I will address each of these in order.

a. The Special Permit

The Brombergs' request for the Special Permit was based on Section 6.1 of the Bylaw, which pertains to alterations to non-conforming uses or structures. That Section implements G.L. c. 40A, § 6 on the local level. [Note 53] G.L. c. 40A, § 6 states, in relevant part, as follows:

A zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun . . . before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, . . . to any reconstruction, extension or structural change of such structure . . . except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

Bylaw Section 6.1 implements these protections locally in Wellfleet by providing the following procedure:

6.1.5.1 Non-conforming single or two-family residential structures may be altered if:

(a) The Building Inspector determines that the alteration will not increase the non-conforming nature of the structure; or

(b) if the alteration will increase the non-conforming nature of the structure, the Zoning Board of Appeals issues a special permit after determining that the alteration is not substantially more detrimental to the neighborhood than the existing non-conforming structure. [Note 54]

With respect to special permits under Bylaw Section 6.1.5.1(b), Bylaw Section 6.1.5.3 provides that such permits "shall be subject to the . . . criteria in Section 8.4.2." That section, which pertains to special permits generally, states that "[t]he Board of Appeals . . . shall not grant a special permit unless it finds that the benefits of the proposal to the town will outweigh any adverse effects on the Town of [sic: or] the vicinity, taking into consideration the stated district objectives . . . ." [Note 55] [Note 56]

Here, there is no dispute that the Existing Dwelling is a pre-existing, nonconforming dwelling that is entitled to the protections of G.L. c. 40A, § 6 and Bylaw Section 6.1, and that the Project qualifies as an "alteration" for purposes of the Bylaw. [Note 57] There is also no dispute that the Project calls for the replacement of one single family residence with another, and thus falls under the second "except" clause of G.L. c. 40A, § 6, as implemented by Bylaw Section 6.1.5.1. It is also undisputed, however, that the New House would "increase the nonconforming nature of said structure" because, under Bylaw Section 6.1.5.3 (b), "any alteration that results in an increase in the volume of that portion of the structure presently non-conforming" constitutes an "increase in the non-conforming nature of the structure". [Note 58] Thus, under the Bylaw, the Project required a special permit pursuant to Bylaw Section 6.1.5.1(b), premised upon the "determin[ation] that the alteration is not substantially more detrimental to the neighborhood than the existing non-conforming structure" -- a determination that must be made in light of the considerations set forth in Section 8.4.2. [Note 59]

As noted above, the New House retains the Existing Dwelling's conforming westerly (rear yard) setback, retains its nonconforming northerly (side yard) setback, and improves slightly its pre-existing, nonconforming easterly (front yard) setback. While the New House expands by 1.8 feet on its southerly side yard, this setback is presently, and will remain, in conformity with the Bylaw. Indeed, this southerly expansion is the only proposed horizontal expansion of the New House, and it would be on the far side of the New House vis-a-vis the Coady Property, and thus would be largely (if not entirely) imperceptible from the Coady Property from most angles. With respect to vertical expansion, the New House likewise would remain a conforming structure in terms of its overall ridge height above average grade. [Note 60] Indeed, the New House could have been proposed to be up to four feet (nearly seventeen per cent) taller, and it still would conform.

This leaves the increased building coverage as the only area where the pre-existing nonconformity of the Existing Dwelling will be increased by the larger footprint of the New House of 6.18%. [Note 61] The parties agree that, because of this increased non-conformity, the Project required a special permit under G.L. c. 40A, § 6 and Bylaw Section 6.1.5.1. [Note 62] Even here, however, this expansion of an existing non-conformity would be modest and would be largely confined to an area of the Bromberg Property where the New House will conform to the relevant dimensional requirements of the Bylaw (i.e., the southerly side yard and westerly rear yard setbacks).

In terms of the impact that the Project will have, based upon the within findings of fact, and having reviewed the findings and conclusions of the ZBA set forth in the ZBA Decision, I cannot reach the conclusion that it was in any way arbitrary, capricious, or unreasonable for the ZBA to conclude that the New House would not be "substantially more detrimental to the neighborhood than the existing non-conforming structure". I reach this conclusion based upon an assessment of the criteria set forth in the Bylaw.

In particular, the New House would not be out of place in terms of its size, bulk, or design, and thus appears to advance the Bylaw's objective with respect to the R1 zoning district to "provide [a] moderate density residential environment"; further, its septic system complies with all relevant laws and regulations (and the Restrictive Covenant), which advances the need to "accommodate such densities without endangering the public's health, safety or welfare." Similarly, there was no reliable evidence that the Project would cause any harms with respect to the "[a]dequacy of roads, drainage, and other public services", nor that the Project did not amply take into consideration harms relating to "erosion, siltation potential groundwater or surface water contamination, habitat disturbance, or loss of valuable natural vegetation". [Note 63] Finally, I agree with the ZBA that "scenic views from public ways and developed properties have been considerately treated". The mere fact that the New House will result in any diminishment of views is not enough to justify reversal of the ZBA Decision. Kenner, 459 Mass. at 123. [Note 64] Rather, all the Bylaw requires is "considerate treatment" of views, and here the ZBA appears to have applied it. [Note 65]

Based on the foregoing discussion, I FIND that the Special Permit satisfies all relevant requirements of the Bylaw, and therefore the ZBA did not act arbitrarily, capriciously, or unreasonably in granting it. [Note 66]

b. The Floodplain Exemption

In addition to granting the Special Permit, the ZBA Decision also granted the Brombergs the Floodplain Exemption pursuant to Section 6.14 of the Bylaw. That Section provides as follows:

In special flood hazard areas subject to high wave impact and/or severe flood inundation [including the VE flood zone] . . . no new building shall be erected or constructed and no new subsurface disposal system installed except as authorized or required by the Board of Health; no paving; no existing structure shall be enlarged; no structure shall be moved except as landward of the reach of mean high tide; no dumping; no filling or earth transfer shall be permitted except as authorized by the Conservation Commission . . . .

Section 6.14.1 of the Bylaw lists a number of activities and structures that are permissible in the relevant flood zones covered by the Bylaw, including "[d]wellings . . . lawfully existing prior to the adoption of these provisions".

The parties disagree significantly as to the applicability of this Section for vastly different reasons. Mrs. Coady, for her part, argues that Section 6.14 (and also FEMA's VE flood zone construction requirements) should apply to the entirety of the Bromberg Property -- including the "buildable" portion of the Bromberg Property (where the New House will be located) that is located landward of the VE flood zone -- because much of that area is, due to its inland-sloping topography, located at a lower elevation than the upper VE flood zone boundary line. I disagree. Having reviewed the Bylaw (as well as the relevant FEMA regulations on which it is based and the FEMA Letter interpreting those regulations), there is no support for the argument proffered by Mrs. Coady, as articulated by Bennett in his deposition. Rather, as the plain language of these authorities indicates (and as O'Reilly credibly testified), the flood zone requirements of both the Bylaw and FEMA's regulations apply only to the area seaward of the VE flood zone boundary. [Note 67]

The Brombergs offer a much different argument on this point, namely that no portion of the Project is subject to Section 6.14 of the Bylaw because the entirety of the built structure of the New House will be located landward of the VE flood zone. They too are incorrect because Section 6.14 specifically prohibits "paving" in the VE flood zone. [Note 68] While they are correct that the structure of the New House will be located outside of the VE flood zone, a small portion of the Patio will be inside it. Thus, the Brombergs' options were (a) to redesign the Patio so as to remove it entirely from the VE flood zone, or (b) to request the Floodplain Exemption. [Note 69] They chose the latter. [Note 70]

In sum, I conclude that, because a portion of the Patio would be located in the VE flood zone, the Brombergs were, in fact, required to seek the Floodplain Exemption. However, I disagree with Mrs. Coady's contention that the Floodplain Exemption was required for the entire New House. Rather, the Floodplain Exemption was required only to the extent necessary to authorize the portion of the Patio that will be located in the VE flood zone.

With respect to exemptions from Section 6.14 of the Bylaw, Section 6.14.3 of the Bylaw provides as follows:

To appeal the restrictions in this section, application may be made to the Wellfleet Board of Appeals for a floodplain exemption from this floodplain bylaw in accordance with the following conditions:

6.14.3.1 A determination that the granting of an exemption will not result in increased flood heights, decreased flood storage capacity, additional threats to public safety, extraordinary public expense, cause fraud on or victimization of the public, or conflict with existing local laws.

6.14.3.2 A showing of good and sufficient cause.

6.14.3.3 A determination that failure to grant the variance would result in exceptional hardship to the applicant.

6.14.3.4 Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

6.14.3.5 Compliance in all respects with sections of the State Building Code (780 CMR) which address floodplain and coastal high hazard areas.

6.14.3.6 Approval of the Wellfleet Conservation Commission in accordance with MGL Chapter 131, S. 40, the Wetland Protection Act, and with the Town of Wellfleet's Environmental Protection Bylaw.

As discussed above, the ZBA Decision made formal findings that the Project would comply with the first, fifth, and sixth of these criteria. Based upon this court's de novo findings of fact, I find no basis on which to conclude that it was in any way arbitrary, capricious, or unreasonable for the ZBA to reach this conclusion. When the Brombergs' request to redraw the FEMA VE flood zone boundaries was turned down, the Brombergs thoughtfully revised their plans for the Project to replace the proposed ground flood rear deck with the Patio, which, as proposed, would be detached from the New House and made of some kind of stone material. [Note 71] Not only would the Brombergs' proposal appear to ameliorate any possible flooding issues (and also effect the discontinuation of a grandfathered use, which is a primary goal of all zoning), it is likely that, based on the evidence, any reasonable zoning authority might conclude that the mere laying of approximately 12.5 square feet of paver stones or a concrete pad would not "increase[ ] flood heights, decrease [ ] flood storage capacity, [cause] additional threats to public safety, [cause] extraordinary public expense, [or] cause fraud on or victimization of the public." [Note 72]

In sum, based on the foregoing discussion, I FIND that the Floodplain Exemption satisfies all relevant requirements of the Bylaw, and therefore the ZBA did not act arbitrarily, capriciously, or unreasonably in granting it.

Conclusion

In summation, while I have found that Mrs. Coady had standing to appeal the ZBA Decision, ultimately I conclude that her claims were without merit, and that the ZBA acted reasonably in issuing the ZBA Decision. [Note 73] I thus AFFIRM and UPHOLD the ZBA Decision in all respects and grant JUDGMENT in favor of the Brombergs.

Judgment to enter accordingly.