The Lexington Historical Society (the "Society") has proposed the construction of a two-story, barn-style building as an addition to the historic Munroe Tavern in Lexington. The addition would be used to store the Society's archives, currently stored at another location. The side-yard setback for the proposed archives addition does not comply with the Lexington Zoning Bylaw (the "Bylaw"), and the Society accordingly applied for and received a side-yard setback variance from the Lexington Zoning Board of Appeals (the "Board"). The plaintiff Amelia Bergmann owns and resides at a property across the street from the Munroe Tavern, approximately 240 feet from the site of the proposed addition. On March 7, 2016, Amelia Bergmann and Michelina Abele filed a complaint appealing the Board's grant of the variance pursuant to G.L. c. 40A, § 17; they filed an amended complaint on April 19, 2016 consisting of three counts, each articulating a different basis for the invalidity of the variance. On May 26, 2016, plaintiff Abele voluntarily dismissed her claims, leaving Bergmann as the sole remaining plaintiff in this action.
On September 26, 2016, the Society filed a motion to dismiss for lack of jurisdiction under Mass. R. Civ. P. 12(b)(1), and filed an amended memorandum in support of its motion on October 3, 2016; on November 4, 2016, the plaintiff filed her opposition, and on December 2, 2016, the Society filed its reply. [Note 1] At the request of the defendants, and with the assent of the plaintiff, I took a view of the properties involved in the dispute on December 12, 2016, and a hearing was held on the motion on December 14, 2016.
The gravamen of the Society's motion is that the plaintiff is not a person aggrieved by the Board's decision for purposes of G.L. c. 40A, § 17, and therefore lacks standing to maintain this action. For the reasons stated below, I agree that the Society has successfully rebutted the plaintiff's presumption of standing and that the plaintiff has failed to come forward with credible evidence of an injury to a protected interest. Accordingly, the Society's motion to dismiss for lack of subject matter jurisdiction is ALLOWED.
The following facts alleged in the amended complaint are accepted as true for the purposes of the pending motion to dismiss. Matters submitted by the parties that are outside the pleadings and are not in dispute were also considered by the court in ruling on this Rule 12(b)(1) motion. See Audoire v. Clients' Security Board, 450 Mass. 388 , 390 fn. 4 (2008) ("A judge may consider documents and other materials outside the pleadings when ruling on a rule 12(b)(1) motion."). In addition, prior to the hearing on the motion to dismiss, I took a view of the subject properties in response to a motion by the defendants, which was assented to by the plaintiff.
1. The plaintiff Amelia Bergmann owns and resides at the property at 9 Tavern Lane in Lexington.
2. The Society owns the property known as the Munroe Tavern located at 1332 Massachusetts Avenue in Lexington (the "Locus").
3. Massachusetts Avenue, as it passes the Locus, runs approximately northwest to southeast; Tavern Lane, an unpaved, unaccepted way plowed and maintained by the Town of Lexington, runs approximately north to south and terminates at its intersection with Massachusetts Avenue.
4. The Locus is a 1.29-acre triangular parcel situated within the acute angle of the intersection of these two roads, with Tavern Lane located along the western boundary of the Locus and Massachusetts Avenue along its northeastern boundary. [Note 2]
5. The plaintiff's property, improved by a one-story ranch-style house built in 1958, is on the opposite side of Tavern Lane from Locus, with a narrow portion of the northeastern corner of the plaintiff's property located across Tavern Lane from the southwestern edge of the Locus. [Note 3]
6. The Locus is located in a zone classified by the Bylaw as RS (One-Family Dwelling). [Note 4]
7. The Locus is the site of the Munroe Tavern. The Tavern was built in 1735, is of historical significance dating to the American Revolutionary War, and is listed in the National Register of Historic Places. [Note 5]
8. The Munroe Tavern currently operates as a museum and meeting place for the Society. [Note 6] The Tavern is staffed five days a week year-round. It has been open year-round since 1993 for meetings, special events, and group tours. It is open for drop-in visits by the general public from April through November. [Note 7]
9. The Locus currently has eleven off-street parking spaces. The plan for the addition approved by the Board will neither add nor remove any spaces; it will relocate the one handicap-accessible space approximately two feet to the east of its current location. [Note 8]
10. The Society intends to construct a two-story, 24-foot by 32-foot addition to the existing Tavern building, resembling a barn, for the purpose of storing the Society's archives. [Note 9] The addition will be on the westerly side of the existing building, and will be located approximately two hundred forty feet from the nearest boundary of the plaintiff's property. [Note 10]
11. The Society's archives are currently stored at a separate location in Lexington. The present location of the archives received fourteen total visits by researchers in 2013, two in 2014, and seven in 2015. [Note 11] The Society anticipates a maximum of approximately two researcher visits to the archives per week once the archives are relocated to the new addition.
12. The Society filed an application for a variance with the Board to allow a 7.3-foot side yard setback from Tavern Lane for the proposed archives structure instead of the required 30 feet.
13. At its January 28, 2016 hearing, the Board approved the Society's application for a variance.
14. The Board filed its written decision with the Town Clerk on February 18, 2016.
15. On March 7, 2016, the two original plaintiffs filed the present action appealing the approval pursuant to G.L. c. 40A, § 17.
In reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1), the court accepts as true the factual allegations in the complaint, as well as any favorable inferences reasonably drawn from them. Ginther v. Comm'r of Ins., 427 Mass. 319 , 322 (1998). In considering subject matter jurisdiction under this rule, the court may consider matters outside the four corners of the complaint, which are used to support the movant's claim that the court lacks subject matter jurisdiction. Id. at n.6.
The Society argues that the plaintiff is not aggrieved by the Board's decision, and therefore lacks standing to challenge it. "Under the Zoning Act, G.L. c. 40A, only a 'person aggrieved' has standing to challenge a decision of a zoning board of appeals." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012). "[A]butters, 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", are entitled to notice of zoning board hearings and "enjoy a rebuttable presumption that they are 'persons aggrieved'" by a decision concerning another property. G.L. c. 40A, § 11; Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). "The defendant, however, can rebut the presumption by showing 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 Alternatively, the defendant can rebut the presumption by coming forward with credible affirmative evidence that refutes the presumption, that is, evidence that warrant[s] a finding contrary to the presumed fact of aggrievement, or by showing that the plaintiff has no reasonable expectation of proving a cognizable harm." Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570 , 573 (2016), quoting Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006). Rather than providing its own evidence, the defendant may also rely on the plaintiff's lack of evidence, obtained through discovery, in order to rebut a claimed basis for standing. See Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 35 (citing cases). If a defendant fails to offer sufficient evidence to rebut the plaintiff's presumption of standing, the abutter "is deemed to have standing, and the case proceeds on the merits." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 701.
Once a defendant has successfully rebutted the presumption, the burden then shifts to the plaintiff, with no benefit from the presumption, "to prove standing by putting forth credible evidence to substantiate the allegations." Id. at 700. To do so, "[t]he plaintiff must 'establishby direct facts and not by speculative personal opinionthat his injury is special and different from the concerns of the rest of the community.'" Id., quoting Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 33. Furthermore, "[a]ggrievement requires a showing of more than a minimal or slightly appreciable harm The 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 Put slightly differently, 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." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 122 (2011). Nonetheless, "a plaintiff is not required to prove by a preponderance of the evidence that his or her claims of particularized or special injury are true. 'Rather, the plaintiff must put forth credible evidence to substantiate his allegations.'" Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005), quoting Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 722. This "credible evidence" standard has both qualitative and quantitative components: "[q]uantitatively, 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." See id. (internal citation omitted). The facts offered by the plaintiff must be more than merely speculative. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008).
Presumption of Standing.
The threshold step in evaluating the plaintiff's standing is determining whether she is entitled to the benefit of the presumption of aggrievement afforded by G.L. c. 40A, § 17. There is no dispute that the plaintiff's property lies "catty-corner" across Tavern Lane from the Locus and was properly treated as the property of a party in interest by reason of being land directly across Tavern Lane from the Locus or land of an abutter to an abutter within three hundred feet of the Locus for the purposes of notification of the hearing on the Society's application for a variance. Accordingly, the plaintiff is presumed to be a person aggrieved by the Board's decision with standing to challenge it.
Rebuttal of the Presumption.
The burden thus shifts to the Society, as the party challenging the plaintiff's standing, to come forward with evidence rebutting the presumption. The plaintiff's amended complaint articulates, as particular sources of aggrievement, the negative impact on the plaintiff's property of the proposed addition by reason of additional traffic, parking issues, and a negative impact on the character of the neighborhood, the view from the plaintiff's home, and the value of her property.
The defendants have adduced the following evidence and arguments concerning each of these claimed injuries sufficient to rebut the presumption afforded by the statute.
Traffic and Parking. The plaintiff claims in the amended complaint essentially that the archives addition will cause an increase in use of the Munroe Tavern that will exacerbate traffic and use of on-street parking on Tavern Lane. Loss of on-street parking spaces combined with an increase in traffic can serve as a basis for a finding of standing. Marashlian v Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 723. However, here, unlike in Marashlian, there is not even an assertion in the amended complaint that any on-street parking spaces will be removed or that the plaintiff uses or relies on on-street parking, and it is undisputed that the number of off-street parking spaces (eleven) will not be reduced, although one off-street parking space will be slightly relocated on the Locus. The record also demonstrates that the use of the Munroe Tavern, even with the addition of the archive structure, will not draw more traffic in any appreciable way than it does at present. There is no suggestion that the size of the staff, currently two people in the off-season and four people during the tourist season, will change. The construction of the addition will necessitate the repurposing of the current meeting room, moving committee meetings of eight to ten people, held two to three times per month, to an off-site location, thus appreciably reducing traffic and parking demand at times when the meetings would have been held. The new archives addition itself, based on use of the current off-site facility, is expected to draw two staff or volunteer visits daily and at most two visits from researchers per week. [Note 12] All of this suggests a net decrease in traffic and demand for parking, and at worst, a de minimis increase in parking demand during the days when researchers visit the new archives. A de minimis impact does not serve as a basis for a finding of standing. See Kenner v Zoning Bd. of Appeals of Chatham, supra, 459 Mass. at 124.
Character of the Neighborhood. In the amended complaint, the plaintiff asserts that the construction of the archives addition to the Munroe Tavern will adversely impact the "character of Tavern Lane the Munroe Tavern Historic District and the surrounding neighborhood." [Note 13] Fundamentally, these are assertions that certain aesthetic features that lend the neighborhood its historic character will be impacted. Changes to the aesthetic character or "feeling" of a neighborhood are not legally cognizable grounds for standing. See Harvard Square Def. Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989) (" diminished enjoyment of the 'village feeling' of Harvard Square essentially involv[es] the expression of aesthetic views and speculative opinions "); Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132-133 (1992) ("Subjective and unspecific fears about the 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."); Standerwick v. Zoning Bd. of Appeals, supra, 447 Mass. at 32 n.16 ("[T]he Appeals Court correctly noted that '[a]n interest in preserving the rural character of the neighborhood is not a legally cognizable interest to be considered in determining standing.'"). [Note 14]
Views. The plaintiff further alleges that as a result of the construction of the archive addition to the Munroe Tavern, her "views will be compromised " [Note 15] "Generally, concerns about the visual impact of a structure do not suffice to confer standing " Martin v. Corp. of Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, 434 Mass. 141 , 146 (2001). See Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 55 (2005) (" we do not read the Tsagronis case to confer standing on a property owner who claims that development will obstruct a water view Sheehan's concern with the visual impact of development on a nearby wooded hill strikes us as the type of aesthetic sensibility insufficient to impart standing."). While "a zoning by-law can create a protected interest in views from a landowner's property," the Bylaw here does not provide additional protection for a property owner's interest in maintaining a view. Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 602 (2011).
A bylaw can give rise to protection of views either by expressly stating an intention to protect views, or implicitly though other applicable sections of the bylaw. See Marhefka v. Zoning Bd. of Appeals, 79 Mass. App. Ct. 515 , 520 (2011). The only explicit mention of views in the Bylaw appears in § 5.3.1, which concerns landscaping and screening for properties abutting a different zoning district. This section is not applicable to the Locus, since the plaintiff has presented no evidence that Tavern Lane, the way between the two properties, is also a zoning district boundary. Thus the Bylaw does not elevate views to the level of interest from which standing may arise. See Gottfried v. Betron, No. 14 MISC 488665 (Mass. Land Ct. Jan. 3, 2017) (Piper, J.) (holding that "scattered references" to an interest in other bylaw sections that were inapplicable to the relief at issue could not serve as a basis for standing, as they did not make that interest generally protected in all circumstances). Furthermore, the dimensional controls that are applicable here contain no clear statements of purpose comparable to those in Marhefka from which even implicit protection for views might arise. Cf. Marhefka v. Zoning Bd. of Appeals, supra, 79 Mass. App. Ct. at 520 (finding implicit protection for view where bylaw described yard setbacks as "intended to provide aesthetic value as well as serve as a spatial and visual buffer between lots," and addressed reduction of open space on lots). Accordingly, the fact that the construction of the archives addition will alter the view from the plaintiff's house in a manner that she finds aesthetically displeasing is not an injury through which she may establish standing.
Even if view was an interest protected under the Bylaw, I find, based on my view of the subject properties, and the photographs submitted by the parties, that the distance and intervening vegetation renders the impact on the plaintiff's view so slight as to be the type of "minimal and slightly appreciable harm" that cannot constitute a true injury for the purpose of establishing standing. See Kenner v. Zoning Bd. of Appeals of Chatham, supra, 459 Mass. at 122.
Diminution in Property Value. Plaintiff articulated in the amended complaint a loss of property value of her home at 9 Tavern Lane as a result of the construction of the archives addition. Assuming that loss of property value, whether tethered or untethered to another interest protected by the Bylaw, is protected by the Bylaw (as to which, see discussion infra), the Society has offered sufficient evidence to rebut the presumption of standing on this issue.
The Society offers two affidavits and one letter to support its position that the archives addition will not cause a diminution in the value of the plaintiff's property. I do not credit the letter of C.J. Snow, attached as an exhibit to the affidavit of Susan Jamie Bennett. The letter is conclusory at best and is not otherwise presented in admissible form. The affidavits of Lester E. Savage, III and Laurence McLucas are another matter. Savage is a real estate broker active in Lexington for several decades. He describes accurately the plaintiff's property and its relation to the proposed addition, and he relies on other information that is adequately supported elsewhere in the record, particularly that the traffic impact and "viewscape" impact of the new addition will be negligible, and that accordingly there will be no negative impact on the value of the plaintiff's property. Laurence M. McLucas, a licensed real estate appraiser, offers by affidavit incorporating his earlier letter, that property values in Lexington and surrounding communities have steadily increased notwithstanding, and indeed because of, properties' proximity to the Munroe Tavern and other historic sites. He further averts that there is no "objective market data" supporting a conclusion of diminished value as a result of proximity to the Munroe Tavern or the proposed addition. This is credible evidence that suffices for the purposes of rebutting the presumption of the plaintiff's standing.
Evidence of Injury Presented by Plaintiff.
The Society having presented sufficient credible evidence to rebut the plaintiff's presumption of standing, the burden thus shifts to the plaintiff to demonstrate through direct facts and not speculation that the proposed archives addition is likely to cause her a particular and personal harm. In opposing the Society's motion to dismiss, she advances five separate bases for such standing: interference with privacy, interference with existing views, increased traffic and decreased parking availability on Tavern Lane, diminution of her property's value, and degradation of the residential [Note 16] character of the neighborhood. As discussed above, I have already ruled that loss of views and degradation of the character of the neighborhood are not cognizable injuries under the Bylaw. The other interests claimed by the plaintiff as a basis for particularized harm are discussed below, as well as a more detailed discussion of the issue of neighborhood character.
Interference with Privacy. Bergmann argues that she will suffer a loss of privacy due to the closeness of the structure to her own, the lack of intervening landscaping, and the noise, lights, dust, and odor associated with both construction and operation of the building. While privacy has indeed been acknowledged in a number of cases as a factor contributing to the existence of a cognizable harm, these cases are clear that privacy itself is not an interest protected under the Zoning Act. Rather, loss of privacy can be recognized as a protected interest only as a manifestation of an interference with other interests directly protected by a zoning bylaw; in particular, privacy-related injuries have been recognized where they are grounded in underlying density concerns. See, e.g., Bertrand v. Bd. of Appeals of Bourne, 58 Mass. App. Ct. 912 , 912 (2003) (holding that, where plaintiff claimed backyard privacy, "the grounds for the plaintiffs' objections related directly to the objectives of the density regulation at issue. Especially given the close quarters involved here, the plaintiffs' concerns cannot reasonably be characterized as ill-founded or speculative."); Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 297 (2008) ("Density concerns, on the other hand, are directly protected by the zoning scheme at issue, and the articulated effects on the Dwyers' privacy and use and enjoyment of their property constitute sufficient direct harm to confer standing on them."). See also Geraci v. City of Waltham, 21 LCR 607 , 612 (Mass. Land Ct. 2013) (Sands, J.) ("Plaintiff's alleged harm of decreased privacy is simply a guise for alleging harm relating to increased density in the neighborhood surrounding Plaintiff['s] Property."). Consistent with this principle, cases recognizing loss of privacy as a cognizable basis for standing have uniformly involved either the erection of structures in extremely close proximity to a plaintiff's home, or the crowding of additional structures into already over-dense neighborhoods. See Sheppard v. Zoning Bd. of Appeal, 74 Mass. App. Ct. 8 , 12 (2009); Dwyer v. Gallo, supra, 73 Mass. App. Ct. at 297 (2008); McGee v. Bd. of Appeal of Boston, 62 Mass. App. Ct. 930 , 931 (2004); Bertrand v. Bd. of Appeals of Bourne, supra, 58 Mass. App. Ct. at 912. See also McGrath v. Chatham Zoning Bd., 17 LCR 101 , 103 (Mass. Land Ct. 2009) (Trombly, J.). In Sheppard, the Court found a density-related in injury where the plaintiff's house, "already subject to overcrowding by the buildings flanking its sides, now has another three-story structure fourteen feet behind it, blocking its last relatively open corridor." Sheppard v. Zoning Bd. of Appeal, supra, 74 Mass. App. Ct. at 12. Similarly, in McGee, the proposed construction was to bring two residences within a foot of each other. McGee v. Bd. of Appeal of Boston, supra, 62 Mass. App. Ct. at 931. In Bertrand, the defendant had proposed to construct two single-family homes directly behind the plaintiffs on two 20,000-square-foot lots, when the minimum lot size for one such home was 40,000 square feet. See Bertrand v. Bd. of Appeals of Bourne, supra, 58 Mass. App. Ct. at 912. In Dwyer, the plaintiff was a "close abutter" to the defendant "in a neighborhood where construction is already more dense than allowed by the current zoning", and the defendant intended "to reconstruct one house and add an additional house next to the Dwyers' home on substantially smaller lots than were involved in Bertrand." Dwyer v. Gallo, supra, 73 Mass. App. Ct. at 297.
The plaintiff claims that she will suffer a loss of privacy due to the archive addition's proximity to the Society's lot line bounding on Tavern Lane and to her own property, and this is indeed conceptually grounded in the protected realm of density-related concerns. However, she has provided no credible support for a claim that the archives addition will, in fact, either exacerbate existing density issues or crowd her particular property. The plaintiff has neither directly alleged nor provided any evidence indicating that the neighborhood is already overly dense in the manner of Dwyer and Bertrand. The suggestion that the plaintiff will be crowded in the manner recognized by Dwyer and Bertrand does not rise to the level of credible evidence where the distance between the proposed structure and the plaintiff's property, not to mention her house, will be well in excess of two hundred feet. The variance granted does not bring any part of the Munroe Tavern appreciably closer to the plaintiff's property, and the considerable distance between the plaintiff's house and the new structure will remain obscured not only by distance but by a considerable number of trees and other foliage. The plaintiff's home and the proposed construction are here separated by a distance so great as to foreclose any credible possibility of a sufficiently substantial density-related impact. Moreover, the density implicated by the approved location of the archives addition does not appear likely to differ from the harm that would result from an as-of-right placement of the structure elsewhere on the Locus, and this is a factor that the court may consider in its evaluation of the plaintiff's standing. See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 724. This can be contrasted to the structure at issue in Bertrand, where the two residences proposed could not have been built as of right. See Bertrand v. Bd. of Appeals of Bourne, supra, 58 Mass. App. Ct. at 912.
The plaintiff additionally argues that the structure will generate noise, odor, dust, and headlight glare that will intrude on her privacy. It remains somewhat unclear how a number of these impacts truly relate to privacy; nonetheless, they undoubtedly are injuries themselves recognized as potentially providing a cognizable basis for standing if sufficiently supported by facts and data. See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570 , 574 (2016) (acknowledging noise as typical zoning concern); Rogel v. Collinson, 54 Mass. App. Ct. 304 , 315 (2002) (finding standing based on dust and odor). Even so, the plaintiff has supplied no evidence whatsoever, expert or otherwise, concerning the structure's likely impacts from light, noise, dust, and odor, either during construction or after. She relies solely on her own unsupported fears, as articulated in her affidavit, that "temporary construction noise, dust and odors will affect me tremendously. And once the addition is completed and the archives center is operational, the noise generated from everyday, year-round use and the glare of headlights will be more than I experience today." [Note 17] These, stated in the most conclusory fashion, without even a fig leaf of purported fact, are "just the type of 'uncorroborated speculations' sought to be avoided by the standing requirements of G. L. c. 40A, § 17." Marashlian v. Zoning Bd. of Appeals, supra, 421 Mass. at 723 n.5 (citing holding that unsupported claim of increased headlight glare was speculation); see also, Sweenie v. A.L. Prime Energy Consultants, supra, 451 Mass. at 543. Plaintiff has failed to sufficiently substantiate harms concerning either these interests or density- related concerns, and has therefore not through this avenue met her burden of establishing standing.
Traffic and Parking. Responding to the motion to dismiss, the plaintiff has submitted additional evidence in support of her claim in the amended complaint that the construction of the archives addition will exacerbate traffic and parking problems in a way that will injure her in the use of her property. The plaintiff claims that the new structure will result in increased traffic and parking of vehicles on and around Tavern Lane. "[F]ear [of] increased traffic and decreased parking availability are legitimately within the scope of the zoning laws." Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 722. "The fear of increased traffic, however, must be an injury particular to the plaintiff herself and not merely to the community at large." McKenney v. Zoning Bd. of Appeals, 84 Mass. App. Ct. 1105 (July 26, 2013) (Rule 1:28 Decision). Moreover, the evidence of a traffic-related injury must be quantitatively sufficient to demonstrate an actual adverse effect on the plaintiff's property. See Michaels v. Zoning Bd. of Appeals of Wakefield, 71 Mass. App. Ct. 449 , 451 (2008).
The plaintiff relies entirely upon the affidavit of Kim E. Hazarvartian, who is an experienced and qualified transportation engineer, but who was apparently asked to opine as to traffic impacts without having him do the work necessary to determine whether there actually would be a negative impact on the plaintiff's property as a result of the construction of the archives addition. [Note 18] The result is an affidavit that is long on conjecture and speculation and short on evidence and facts. Dr. Hazavartian states that he was asked to opine on the "impacts to traffic flow and circulation" of the present building and the proposed archives addition, and on "trip generation and distribution as a consequence of the Project, particularly as they affect the Plaintiff's property " [Note 19] Yet nowhere in his affidavit does he indicate that he has done any investigation, by completion of a traffic study or otherwise, to determine the current trip generation or distribution of traffic flow at the Munroe Tavern, or the likely additional trip generation and change in traffic circulation, if any, as a result of the construction of the archives addition. Likewise, there is no information or analysis of the present level of service at intersections adjacent to the Munroe Tavern or information from which it could be determined whether the proposed addition would cause any reduction in the levels of service at these nearby intersections.
Instead, the Hazarvartian affidavit is dependent on conjecture and speculation that is not based on any disclosed evidence, and in one case is based on an incorrect statement of fact. In particular, Dr. Hazarvartian concludes that following construction of the archives addition, visitors are more likely than at present to utilize Tavern Lane than Massachusetts Avenue to access the facility. He draws this conclusion without presenting any evidence or having done any study as to existing circulation or access, and he does so on the basis of an incorrect statement, directly contradicted by the undisputed facts in the record, that the construction of the archives addition will include a new "parking area to be constructed" adjacent to the archives addition. It is undisputed that there are presently eleven off-street parking spaces, that no new off-street parking spaces are proposed, and that one existing off-street parking space, a handicap-accessible space, will be moved about two feet to accommodate the new structure, but will still be entirely on the Munroe Tavern property. [Note 20] Accordingly, there is no credible basis for the conclusion that the construction of the addition will result in increased usage of Tavern Lane in any way that will interfere with the plaintiff's property. The subsidiary opinion that snow and ice in the winter may reduce accessibility to the plaintiff's property from Tavern Lane is also not related in any supportable way to the proposed addition for the same reason, as is the case with the further unsupported opinion that "these problems" will be exacerbated "if" visitors park in the already existing parking area at the edge of Tavern Lane closer to the plaintiff's home. As the use of these off-street parking spaces is currently authorized, their mere continued use after the construction of the addition cannot be a basis for a finding of a new impact on the plaintiff's property. There is no evidence in the record to support an inference that these existing parking spaces are currently under-utilized, that they will be used more frequently after the new addition is built, or that such increased use, if it occurred, would interfere with access to the plaintiff's property.
Even had the affidavit adequately supported its conclusions, which it did not, that there will be increased trip generation or decreases in the functioning of nearby intersections, or reduction in available street parking, nowhere in the Hazarvartian affidavit does Dr. Hazarvartian actually opine that traffic issues will cause a particularized injury to the plaintiff in the use of her property. As is noted above, the plaintiff does not claim that she uses on-street parking, so even a reduction in available on-street parking would not cause her a cognizable injury. Contrast, Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 722. The allegation, as unsupported as it is, that "emergency access to Ms. Bergmann's residence and others in the neighborhood, via Tavern Lane, could therefore be impeded" (if snow and ice cause a reduction in the width of the travelled way), is an allegation of a general harm to the neighborhood, and not a particularized injury specific to the plaintiff. See Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682-684 (2002) (evidence of increased traffic on road used by the plaintiff insufficiently particularized harm upon which to base a finding of aggrievement). Demonstrating an increase in traffic typically does not alone suffice to show such an injury; there must be a non-speculative showing of actual harm to the plaintiff's property directly related to that increase. Michaels v. Zoning Bd. of Appeals of Wakefield, supra, 71 Mass. App. Ct. at 451; Butler v. City of Waltham, supra, 63 Mass. App. Ct. at 442-443. The plaintiff has thus failed to carry her burden of establishing an injury related to traffic and parking sufficient to confer standing.
Diminution in Property Value. The plaintiff claims that the archives addition will diminish the value of her property, and she has submitted three affidavits addressing value in opposition to the Society's motion to dismiss. Diminution of value is not in and of itself an interest protected by the Zoning Act. See Kenner v. Zoning Bd. of Appeals, supra, 459 Mass. at 123 ("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.'"). Typically, therefore, "[d]iminution 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." See id., quoting Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 3132. However, an interest that is not otherwise sufficient to serve as an independent basis for standing may become so when defined in the bylaw as a protected interest. See Martin v. Corp. of Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, 434 Mass. 141 , 147 (2001). Here, the Bylaw incorporates by reference as the governing purposes of the Bylaw itself, the purposes enumerated in a section of the legislation that revamped the Zoning Act, St. 1975, c. 808, § 2A. [Note 21] Section 2A includes, "[t]o conserve the value of land and buildings" as one of these purposes. See St. 1975, c. 808, § 2A. "There is no reason why a zoning by-law, like any other document, cannot incorporate material provisions by reference -- rather than restating them in full -- as is the case here." Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 603 (2011). Where the conservation of value is itself so listed in the Bylaw, it becomes an interest directly protected under the zoning scheme, thus obviating the need for tethering to another interest in order to come under this umbrella. See Epstein v. Bd. of Appeal, 77 Mass. App. Ct. 752 , 761 n.17 (2010) (noting that diminution may be a basis for standing as a "derivative interest" where tethered to other protected interests, or a "direct interest" where the zoning scheme specifically provides protection for conservation of value); Bostek v. Entergy Nuclear Generation Co., 22 LCR 363 , 371 (Mass. Land Ct. 2014) (Foster, J.).
The defendants contend that it is settled that the Zoning Act does not elevate diminution of value as a protected interest, and therefore "[m]erely referring to the Zoning Act [in the bylaw] cannot logically have any different effect." [Note 22] The defendants err in conflating the Zoning Act itself with St. 1975, c. 808 § 2A, the act referred to in the Bylaw. Chapter 40A, as inserted in the General Laws by St. 1975, c. 808, § 3, is the Zoning Act; Section 2A, to which the Bylaw refers, is not. See G.L. 40A, § 1; St. 1975, c. 808, § 3. In prior iterations of G.L. c. 40A, the purposes for which a municipality could exercise its zoning power were explicitly stated within Chapter 40A itself, and this expressly established the interests encompassed by the Zoning Act's protection. See M. Bobrowski, Massachusetts Land Use and Planning Law § 2.02 (3d ed. 2011). St. 1975, c. 808, § 3, inserting the new Chapter 40A, did not include a purpose clause in the amended version of the chapter as it appears in the General Laws. Although St. 1975, c. 808, § 2A did indeed articulate a purpose clause similar to that previously present in Chapter 40A, this statement of purpose was separate from § 3, and did not incorporate the purpose clause into the text of Chapter 40A itself. This shift of the articulated purposes to a position outside the Zoning Act itself reflects a change in their function from mandated to suggested purposes, and is consistent with the recognition that under the then-recently adopted Home Rule Amendment, the adoption of zoning laws was now recognized as an exercise of a municipality's independent police power, with the new Chapter 40A conferring a procedure, but not the authority, for enactment of zoning laws. See Emerson College v. City of Boston, 393 Mass. 303 , 308 (1984); Art. 89, § 1, of the Amendments to the Massachusetts Constitution. Section 2A of chapter 808 does not expressly demarcate the particular purposes that zoning legislation can serve, as its predecessor's language had, but instead only "suggest[s] objectives for which zoning might be established," including the aforementioned purpose "to conserve the value of land and buildings." St. 1975, c. 808, § 2A. Accordingly, inclusion of a particular purpose in § 2A, such as conservation of value, does not render it a per se protected interest under the Zoning Act, and it is not until expressly adopted in a particular bylaw that it becomes a protected interest. Thus, in accordance with Section 2A's reference to conservation of the value of land as only a "suggested" purpose, the courts of the Commonwealth have consistently maintained that, generally, "[z]oning legislation 'is not designed for the preservation of the economic value of property " See Kenner v. Zoning Bd. of Appeals, supra, 459 Mass. at 123, quoting Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495 , 503-504 (1940). Indeed, conservation of value is not the only consideration that makes an appearance in Section 2A, yet has failed to find recognition as an interest automatically protected under the Zoning Act: while Section 2A likewise references the "aesthetic qualities of the community," subjective aesthetic considerations have been consistently deemed to fall "beyond the scope of interests protected by the Zoning Act," and only become protected when specifically provided for within a bylaw. Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 213 (2003). See Martin v. Corp. of Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, 434 Mass. 141 , 146 (2001). Therefore, contrary to the Society's argument, the Bylaw's reference to Section 2A is not duplicative of the established regime of Zoning Act protections, which omits conservation of value; rather, it serves to incorporate an additional interest from a source outside this regime.
By referring to the purposes set out in § 2A, the Bylaw recognizes conservation of value as a protected interest, consequently allowing diminution of value alone to serve as a basis for standing. Nonetheless, "[t]he language of a bylaw cannot be sufficient in itself to confer standing: the creation of a protected interest (by statute, ordinance, bylaw, or otherwise) cannot be conflated with the additional, individualized requirements that establish standing." Sweenie v. A.L. Prime Energy Consultants, supra, 451 Mass. at 545. The plaintiff must still satisfy these individualized requirements by providing credible evidence that her property will, in fact, experience diminution of value resulting from the plaintiff's project. This she has failed to do. Though the plaintiff has offered her own opinion as to diminution in value, and has provided expert affidavits opining that her property's value will be diminished, these opinions are speculative and conclusory, are not based on anything more substantial than unsupported assumptions, and do not serve as credible evidence supporting a claim of diminution of value. "Even if an expert has the requisite knowledge and experience, conclusory statements as to changes in the value of land without explanation are not admissible." Ramey v. D'Agostini, 20 Mass. L. Rep. 406 (Mass. Super. Ct. 2005) (Whitehead, J.). Furthermore, while I have ruled that evidence of reduction in value need not be tethered to a particular interest protected by the Bylaw, to the extent that the affiants have based their assertions of diminished value on impacts of the proposed addition that are not protected (view, neighborhood character) or are unsubstantiated (traffic and parking, privacy), they cannot succeed.
The plaintiff has offered three affidavits, including her own, opining that her property will be diminished in value if the archives addition is built. The plaintiff, in her own affidavit, offers her opinion that the value of her property will decrease by an unspecified amount as a result of "destruction of my views intrusion upon the privacy I now enjoy", safety concerns she expects buyers to have as a result of additional traffic burdens on Tavern Lane, and a negative impact on the character of the neighborhood. "A nonexpert owner of property may testify to its value upon the basis of 'his familiarity with the characteristics of the property, his knowledge or acquaintance with its uses, and his experience in dealing with it.'" Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752 , 759 (2010), quoting Winthrop Prods. Corp. v. Elroth Co., 331 Mass. 83 , 85 (1954). Here, the plaintiff did not offer any explanation of her qualifications, familiarity, or experience (other than being an owner), or any facts in support of her opinion beyond a bare assertion that there would a loss of value of unspecified amount resulting from asserted impacts on interests (view, traffic and parking, privacy, character of neighborhood), that I have ruled are either not protected or for which there has been no credible support offered. "[W]hether an owner, or any other witness, is sufficiently qualified to offer an opinion as to the value of real property is a question committed to the judge's sound discretion." Canepari v. Pascale, 70 Mass. App. Ct. 840 , 847 (2011). The plaintiff further purports to rely for her opinion not on her own knowledge and qualifications, but on the affidavits of her two real estate broker experts. For these reasons I do not credit the plaintiff's affidavit as providing any credible evidence of a diminution in the value of her property.
Plaintiff also adduced the affidavit of Judith Alexander, a licensed realtor, which opines that the resale value of the plaintiff's home will be reduced by approximately twenty percent as a result of the archives addition proposed on the Locus. Ms. Alexander makes no indication that she examined any comparable sales, homes or other applicable quantitative data in arriving at this conclusion, which significantly undermines the credibility of her opinion as to the impact of various factors on the property's value; "[q]uia ego sic dico, without a sound basis, is not an acceptable method of analysis, even for an expert." Reik v. Jansson, 15 LCR 536 , 540 (Mass. Land Ct. 2007) (Long, J.), aff'd sub nom. Reik v. Zoning Bd. of Appeals, Mass. App. Ct., No. 07- P-1988 (Feb. 26, 2009). Notwithstanding this overarching deficiency, Ms. Alexander based her opinion on the particular factors of change in view, increased traffic congestion, safety concerns related to parking, and runoff from parked automobiles. Her conclusions concerning traffic and parking largely arise from an inaccurate premise. She states that the "11 planned parking spaces on Tavern Lane" will increase congestion, make it impossible for emergency vehicles to traverse Tavern Lane, and will be a "possible source of contamination." However, it is undisputed in the record that the eleven "planned" parking spaces are in fact all presently in existence, will not be new or added spaces, and are all located on the Locus, and not on Tavern Lane. Ms. Alexander additionally opines without any basis in facts presented by either party that traffic congestion will be a "constant occurrence what with nonresidents of Tavern Lane gathering at the archive " Ms. Alexander does not purport to herself be independently qualified to determine the extent of changed traffic density, and as previously discussed, the expert affidavit that is specific to traffic does not credibly indicate any consequential impact as a result of increased traffic or usage of the facility. The remaining basis for Ms. Alexander's opinion of devaluation is the change in view. She states that "the view of Massachusetts Avenue will be reduced by two- thirds as a result of the new construction," the plaintiff will lose the ability to observe traffic, and there will be additional shade on the plaintiff's property. I have already ruled that an opinion based on impact to an unprotected interest, as is Ms. Alexander's (view, aesthetic considerations) even where diminution in value may be an independent protected interest, may not serve as a basis for a finding of standing. But notwithstanding this ruling, the factual underpinnings of Ms. Alexander's affidavit are "so slim that even under the 'clearly erroneous' standard, [a] finding of standing [based on the offered facts] cannot be sustained." Nickerson v. Zoning Bd. of Appeals of Raynham, supra, 53 Mass. App. Ct. at 683. Ms. Alexander, who does not purport to be a traffic engineer or an expert on contaminants, freely opines as to matters not otherwise in the record, matters she does not purport to have investigated independently, and on matters concerning which she is not qualified to give an opinion, including traffic congestion and contamination of soil, trees, plants and animals. Having based her opinion of impact on value on these subsidiary facts either not in the record or as to which she is not qualified, her assertion of a resulting twenty percent decrease in value of the plaintiff's property if the archives addition is constructed, cannot be said to be based upon "evidence of a type on which a reasonable person could rely," and is instead entirely speculative and unsubstantiated. See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 724.
Finally, Ms. Alexander does not support her assertion of increased shade with a shadow study or comparably reliable analysis, and her assertion in this regard is so plainly contradicted by the undisputed facts as to not constitute a disputed fact. The plaintiff's house is in a heavily wooded, and therefore generally shaded, area, and the proposed addition is over two hundred forty feet away, is only two stories high, and is located northeast of the plaintiff's property, and cannot possibly cast a shadow on the plaintiff's house. Ms. Alexander's opinion is both quantitatively and qualitatively deficient, and therefore does not serve as credible evidence supporting a claim of diminution of value.
To the same end, the plaintiff has also provided the affidavit of Steven Greenberg, another real estate broker. [Note 23] Mr. Greenberg opines that the value of the property will decrease by ten percent, and bases this on loss of view, "increased traffic and lighting", and "the negative impact to the overall residential character of the neighborhood." First, his attempt to quantitatively show diminution of value through comparison to other properties is deficient. He describes three properties comparable to the plaintiff's, and it appears he utilized these to ascertain its present value. However, he examined no comparable properties claimed to be subject to an impact similar to that of the proposed addition. Data points indicating the property's present value are useless for the purposes of determining diminution if unaccompanied by additional data that would, by comparison, indicate the extent of any impact. Even Mr. Greenberg's opinion of the present value of the plaintiff's property is internally inconsistent and therefore fatally flawed. In the summary of his appraisal, attached as Exhibit 2 to his affidavit, Mr. Greenberg opines that the present value of the plaintiff's property is $1,250,000.00, but nowhere is this value found in his appraisal analysis, in which he gives two other values. In his analysis, he determines that the "indicated value by sale comparison approach" is $1,240,250.00, and that the "predicted price of your home based on cost per square foot" is $1,009,476.00. Mr. Greenberg does not explain his upward departure from these two values in determining his final opinion as to present value.
In his analysis of "Diminution of Value" due to the construction of the archives addition to the Munroe Tavern, Mr. Greenberg acknowledges the importance of determining such diminution in value by "using case studies" and the "practicality of measuring value diminution using market based information." He then goes on to ignore his own stated rules, and gives an opinion that the value of the plaintiff's property will be reduced by ten percent, without reference to comparable sales of similarly situated properties, or any other market-based data, basing his opinion instead, as did Ms. Alexander, on unsupported assumptions about impacts on aesthetic values in the vicinity and impacts on views. Like the opinions of both Ms. Alexander and Dr. Hazarvartian on the same topic, Mr. Greenberg's averment that there will be increased traffic to an extent that will cause congestion is wholly conclusory and unsubstantiated, and accordingly fails to pass even the most basic threshold of credibility needed to stand as a basis for his assessment that the property's value will decrease. Without the market-based data that he acknowledged himself to be necessary, neither Mr. Greenberg's unqualified assertions regarding view nor those concerning aesthetic impact serve to plausibly substantiate his opinion of diminution of value. Accordingly, as both affidavits supplied by the plaintiff to support her claim of diminution of value fail to meet the requisite standard of credible evidence, she has failed to carry her burden of proving standing on that basis.
Character of the Neighborhood. The plaintiff finally contends that the residential character of the neighborhood will be negatively impacted by the physical expansion of the Munroe Tavern. Plaintiff cites to the opinion provided by John R. Mullins, an urban planner, stating that the neighborhood is currently a "quiet residential neighborhood with rural qualities," and will become "a less quiet, less cohesive neighborhood" as a result; [Note 24] that the project's "size, bulk and its overall design are inconsistent with its environs "; and that the neighborhood lies in the "Battle Road Corridor", which is a historic area recognized by the Massachusetts Heritage Landscape Inventory as having a rural character that should be preserved. As I have already ruled (see above), these fundamentally aesthetic considerations in seeking to protect the historic character of the neighborhood cannot be the basis for a finding of standing. [Note 25]
Nonetheless, in light of the cases offered by the plaintiff in support of her position, it is worth considering her argument to be an objection to degradation of the overall residential use that characterizes the zone by mandate of the Bylaw, in addition to being an objection to any degradation of aesthetic qualities particular to this residential neighborhood. There is a line of older cases, a number of which are cited by the plaintiff, holding that a property owner does, in certain circumstances, possess a protected interest in shielding his or her district from the incursion of uses inconsistent with the purpose for which it is zoned. See, e.g., Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986) ("owners of property located in the same zoning district - a single-family, one-acre district - had a legitimate interest in preserving the integrity of the district from the intrusion of multi-family housing. Certainly, the interest of at least these plaintiffs was more than a general civic interest in the enforcement of the zoning ordinance."); Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass. App. Ct. 274 , 276 (1985) ("one who owns property in a residential district and who uses the property for residential purposes, may be viewed as an aggrieved person for purposes of objecting to zoning changes in his residential district because, by reason of his residential use, he has a cognizable interest in preserving the residential character of the district."). See also, Waltham Motor Inn v. LaCava, 3 Mass. App. Ct. 210 , 214-215 (1976); Vainas v. Board of Appeals of Lynn, 337 Mass. 591 , 594 (1958); Reynolds v. Board of Appeal of Springfield, 335 Mass. 464 , 469-470 (1957). Assuming that the plaintiff's property is in the same "RS" single-family zoning district as is the Munroe Tavern (a fact not in the record), these cases still are not applicable on the facts of the present case because the plaintiff has expressly disclaimed any aggrievement based on the use of the proposed archives addition to the Munroe Tavern. [Note 26]
Moreover, although the cited cases lend superficial plausibility to the suggestion that a residential owner may possess standing to oppose the intrusion or expansion of a nonresidential use in a residential zone, more recent jurisprudence indicates a departure from this position. In Denneny v. Zoning Bd. of Appeals of Seekonk, the plaintiff argued that she was aggrieved by a variance allowing the expansion of an existing radio tower in a residential district on the basis that the use was nonconforming for the zone. See Denneny v. Zoning Bd. of Appeals of Seekonk, supra, 59 Mass. App. Ct. at 216. While acknowledging the line of cases mentioned above, the court declined to find standing, stating: "We recognize that various cases have alluded to a theoretical interest of a property owner in preserving the 'integrity of the [zoning] district' in which his property is located. However, none of those cases recognized 'integrity of the [zoning] district' as a separate and independent basis for standing absent a cognizable injury. Indeed, the cases that have mentioned 'integrity of the district' have done so in the process of explaining why given owners of property were without standing in particular circumstances." See id. Furthermore, in Kasperian v. Horning, the plaintiff claimed, like the plaintiff here, "an interest in preserving the integrity of the residential zoning district in which his property resides"; the Land Court's decision rejected this as an independent ground for standing, citing Denneny, and was upheld by the Appeals Court. [Note 27] See Kasparian v. Horning, 17 LCR 387 , 393 (2009) (Grossman, J.), aff'd sub nom. Kasparian v. Planning Bd. of Lexington, 81 Mass. App. Ct. 1103 (December 12, 2011) (Rule 1:28 Decision). See also Fraser v. Zoning Bd. of Appeals of Town of Marshfield, 17 LCR 458 , 459, 462 n.25 (Mass. Land Ct. July 8, 2009) (Grossman, J.), aff'd sub nom. Fraser v. Zoning Bd. of Appeals of Marshfield, Mass. App. Ct., No. 09-P-1715 (July 9, 2010) (rejecting "harm to neighborhood character" as a cognizable basis for standing). As demonstrated by the foregoing sections, the plaintiff has failed to articulate any other cognizable injury, and any concern with respect to the Munroe Tavern's status as a nonresidential use in a residential zone cannot, therefore, serve as a separate and independent basis for standing. See Denneny v. Zoning Bd. of Appeals of Seekonk, supra, 59 Mass. App. Ct. at 216.
The location of the plaintiff's property affords her the presumption of standing, and the defendants provided evidence rebutting this presumption. The burden thus falls on the plaintiff to provide credible evidence of a particularized injury to a protected interest. She has failed to do so. The injuries alleged are either unprotected under the Bylaw and G.L. c. 40A, or are not supported by credible evidence. For the foregoing reasons, I find and rule that the plaintiff is not a person aggrieved within the meaning of G.L. c. 40A, § 17, and the defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1), is accordingly ALLOWED.
Judgment of dismissal to enter accordingly.
[Note 1] The plaintiff filed a motion for summary judgment on September 15, 2016; however, as this matter is disposed of by the motion to dismiss addressed here, the motion for summary judgment is moot.
[Note 2] Affidavit of Susan Bennett, ¶ 6; Site Plan.
[Note 3] See Plaintiff's Statement of Material Facts, Exh. A.
[Note 4] It is unclear from the record whether the plaintiff's property is in the same zoning district.
[Note 5] Amended Complaint, ¶ 18-19.
[Note 6] Affidavit of Susan Bennett, ¶ 13
[Note 7] Supplemental Affidavit of Susan Bennett, ¶ 11.
[Note 8] Supplemental Affidavit of Susan Bennett, ¶ 17.
[Note 9] Amended Complaint, Exh. 1, at 4, 6.
[Note 10] By examining the assessor's map provided by the plaintiff, it is possible to determine the point on the Site Plan's depiction of Tavern Lane where the Plaintiff's property is located. This estimate of distance is thus based on a measurement of the scaled distance on the Site Plan to this point.
[Note 11] Supplemental Affidavit of Susan Bennett.
[Note 12] Affidavit of Susan Jamie Bennett, ¶ 13.
[Note 13] Amended Complaint, ¶ 24.
[Note 14] It should be noted that § 9.4.2 of the Bylaw does refer to "neighborhood character" as one of the criteria to be considered when evaluating a special permit. However, this is a criterion limited to the grant of special permits, and is thus a protected interest under this zoning scheme for the purposes of standing only where such a special permit is implicated; where, as is the case here, a petitioner instead has requested a variance, it is a consideration beyond the purview of the Board itself and therefore not an interest that may serve as a basis for standing.
[Note 15] Amended Complaint, ¶ 29.
[Note 16] This is a more specific articulation of aggrievement than contained within the amended complaint, which referenced the general, as opposed to residential, character of the neighborhood.
[Note 17] Affidavit of Amelia Bergmann, ¶ 15.
[Note 18] The plaintiff, in her own affidavit, makes almost identical assertions regarding traffic to those in the Hazarvartian affidavit. The assertions in the plaintiff's affidavit are no less speculative and conclusory than are the same assertions in the Hazarvartian affidavit.
[Note 19] Affidavit of Kim E. Hazarvartian, ¶ 11.
[Note 20] Amended Complaint, Exh. D.
[Note 21] Affidavit of Sarah Rhatigan, Exh. A, Lexington Zoning Bylaw, § 1.2: "This bylaw has been adopted to govern uses of land; the size, height, bulk, location and use of structures, buildings, and signs; and for all of the other purposes set forth in, but not limited by, Section 2A of Chapter 808 of the Acts of 1975."
[Note 22] Defendant's Reply to Plaintiff's Opposition to Motion to Dismiss, at 14.
[Note 23] Greenberg included a curriculum vitae titled "Appraisers [sic] Qualifications"; this is somewhat misleading, for though he states that he has appraised properties and attended two courses at the "Appraisal Institute", it does not appear that he is, in fact, a licensed appraiser. This further detracts from the credibility of his opinion.
[Note 24] The remaining impacts to "residential character" cited by the plaintiff are increased traffic, interference with view, and increased parking. These are entirely derivative of the plaintiff's other claimed harms already dismissed as insufficiently supported or unprotected by the zoning scheme.
[Note 25] I note, but do not rely on, the irony of the owner of a 1958 ranch house opposing the construction of an historically accurate structure resembling a colonial era barn in order to protect the historic character of the neighborhood.
[Note 26] "I do not object to the existence, preservation, existing use or even reasonable expansion of the Munroe Tavern " Affidavit of Amelia Bergmann, ¶4.
[Note 27] The Appeals Court's decision did not expressly address this issue, but rather "rel[ied] on the judge's decision and the authorities he cited", and was likewise issued pursuant to its Rule 1:28, limiting it to persuasive, rather than precedential, value.