Home CHRISTOPHER NEURATH v. JEANNE KRIEGER, MARTHA WOOD, DAVID WILLIAMS, RALPH CLIFFORD, and NYLES BARNERT as members of the LEXINGTON BOARD OF APPEALS, and 11 BYRON AVENUE LLC [Note 1]

MISC 16-000529

March 9, 2017

Middlesex, ss.

LONG, J.

DECISION

Introduction

In this G.L. c. 40A, § 17 appeal, plaintiff Christopher Neurath challenges the decision of the Lexington Board of Appeals affirming the issuance of two building permits for the construction a single-family home on defendant 11 Byron Avenue LLC's property at 14 Maple Street, also known as 11 Byron Avenue. [Note 2] The house is presently under construction and is nearly complete.

Mr. Neurath's property at 21 Byron Avenue is physically separated from 11 Byron Avenue LLC's property by three other houses, and their properties are on opposite ends of Byron Avenue. Vehicles going to 11 Byron Avenue turn right. Vehicles going to 21 Byron Avenue turn left.

Both 11 Byron Avenue LLC and the Board contend that Mr. Neurath does not have standing to challenge the Board's decision, and have thus moved to dismiss Mr. Neurath's claims for lack of subject matter jurisdiction. Mr. Neurath maintains that he has standing because 11 Byron Avenue LLC's new house will allegedly cause "traffic and safety" and "aesthetic and density" impacts that will adversely affect his property.

As explained more fully below, Mr. Neurath has provided no credible evidence to support his claims of aggrievement. I thus find and rule that Mr. Neurath does not have standing to bring this appeal. 11 Byron Avenue LLC's and the Board's motions are thus ALLOWED, and Mr. Neurath's claims are DISMISSED in their entirety, WITH PREJUDICE.

Facts

Byron Avenue is a "double dead end" residential street with one intersection towards its center that is shared with Lockwood Road. See Exhibit A attached hereto. Together, the two streets form a "T," with Lockwood Road as the vertical base and Byron Avenue as the horizontal top. Prior to the construction of the house at issue, Byron Avenue had five single-family homes, all of which sit across the street from the intersection in a row between the two dead ends. According to Mr. Neurath, there is very little traffic on Byron Avenue. [Note 3] This is not surprising since it leads to nowhere.

Mr. Neurath owns the single-family home at 21 Byron Avenue, which is to the left of the Byron Avenue/Lockwood Road intersection. 11 Byron Avenue LLC's registered land at 14 Maple Street, also known as 11 Byron Avenue, is located to the right of the intersection at the end of one of the dead ends and is physically separated from Mr. Neurath's property by three other single-family houses. [Note 4]

11 Byron Avenue LLC's property is bounded by two public streets: Byron Avenue to the north, and Maple Street to the south. There is presently a 1,118 square- foot ranch-style single-family house on 11 Byron Avenue LLC's land with a driveway off of Maple Street. [Note 5] With approximately 103 feet of frontage on Maple Street, 11 Byron Avenue LLC's property does not satisfy the RS zoning district's current minimum frontage requirement of 125 feet. Neither do the overwhelming majority of the homes in the neighborhood, including Mr. Neurath's. See Exhibit A. 11 Byron Avenue LLC contends that its property is a grandfathered, pre-existing non-conforming lot and that the bylaw allows him to construct the new house as of right. The Board agrees. [Note 6]

11 Byron Avenue LLC applied for building permits to tear down the existing house and construct a new, approximately 5,200-square-foot single-family colonial-style house with a two-car garage on its property. The new house, the construction of which has begun and is almost complete, will be approximately 65 feet north of the existing house, approximately centered on the lot, and thus closer to Byron Avenue. A new driveway off of Byron Avenue will be used to access the property. The existing ranch house will remain on the property during construction of the new house, but will be torn down when the new house is completed. According to the defendants, the new house will be dimensionally conforming.

Lexington's building commissioner issued a foundation permit on April 15, 2016 and a building permit on May 31, 2016 for the construction of the new house at 11 Byron Avenue. Mr. Neurath appealed the issuance of the building permits to the Board, which denied the appeal by decision filed with the Town Clerk on August 23, 2016. He then timely filed this G.L. c. 40A, § 17 appeal from the Board's decision.

Mr. Neurath contends that the Board erred in affirming the grant of the building permits. [Note 7] 11 Byron Avenue LLC and the Board have both moved to dismiss this action for lack of subject matter jurisdiction, contending that Mr. Neurath lacks standing because he is not aggrieved by the Board's decision.

Mr. Neurath argues that he is aggrieved because of the new house's alleged "traffic and safety" impacts, as well as "aesthetic and density" effects. Mr. Neurath provided no expert testimony to support his claims. [Note 8] He instead relies on his own lay person's affidavit to support his claims of aggrievement (the "Neurath Affidavit").

In his affidavit, Mr. Neurath asserts that he moved to Byron Avenue because of its "safe, quiet, and secluded" atmosphere. Neurath Affidavit at p. 4, § 22. According to his affidavit, he and his family use Byron Avenue for neighborhood gatherings and recreational activities such as walking, running, and bicycling, and the neighborhood children use the street as a play area. Presumably, the vehicles presently coming and going to the existing houses do not materially interfere with any of these activities, and the dead-end nature of the street presumably means that speeding does not occur (Mr. Neurath did not allege any such interference or speeding). The street is straight, and Mr. Neurath did not allege any visibility issues. He did not report that any accidents of any kind have ever occurred.

Byron Avenue is approximately twenty-feet wide and does not have any sidewalks or designated turn-around areas. According to Mr. Neurath, some vehicles, especially large commercial vehicles, are not able to turn around on the street and must back up to exit. Why these vehicles are there (the street is a dead-end street and entirely residential), and how often this occurs, was not explained. According to Mr. Neurath, Byron Avenue does not have adequate on-street parking, and he believes that "the new house will exacerbate this problem." Neurath Affidavit at p. 4, § 19. No explanation or details of this were given (precisely how the alleged "inadequacy" of on-street parking manifested itself, the dates, the times, the types of occasions on which this occurred, and how frequently it occurred), nor was any expert analysis presented. According to his affidavit, during construction of the new 11 Byron house, vehicles servicing the property parked on Byron Avenue, blocking a fire hydrant. He did not describe how long they were there, how this affected his house, or indicate why alerts to the police and (presumably) resultant citations for this illegal activity are inadequate to address it.

Mr. Neurath claims that "[b]y increasing the number of homes on Byron Avenue from five to six, the [Board's] Decision permits a 20% increase in the density of Byron Avenue, and therefore a 20% increase in traffic on Byron Avenue, assuming that each home generates roughly the same amount of vehicle trips." Neurath Affidavit at pp. 3-4, § 18. He further asserts that "the new house will probably result in a greater than 20% increase in traffic" because it will be larger than the existing homes on Byron Avenue and will have a two-car garage while the existing homes have, at most, a one-car garage. Neurath Affidavit at p. 4, § 18. He has no expertise to draw such conclusions, does not indicate what a 20% increase would actually be (i.e., precisely how many additional car trips there would be from this single new house, when those trips will take place, and what effect they would have on traffic and safety in the street), [Note 9] and has no expertise to do anything more than speculate on what the impact, if any, would be. There is nothing to indicate, for example, what traffic delays they would cause, or what safety issues they will create, how they would cause them, and when. Without expert analysis, it is nothing more than speculation that there would be any material impact at all. Moreover, his house is at the other end of the street, and vehicles going to and from the new house will not pass in front of his. He is a left turn on Byron Avenue; the new house is a right turn.

During construction, some of the trees that previously separated the existing ranch from Byron Avenue were cleared. Mr. Neurath now claims to have a slight view of the new house and construction activities on the 11 Byron property from his house. He claims that "[t]he removal of the vegetation on [11 Byron's land] has resulted in an increased exposure to the lights, noise, and view of traffic on Maple Street from my home." Neurath Affidavit at p. 4 § 21. He is three houses away, however, and tree removal is specifically governed by the town's tree bylaw, not these permits. He also maintains that the new house will be "out of character" with the existing homes in the neighborhood and will "materially alter the streetscape." Neurath Affidavit at p. 1 § 4. Exactly how this house — according to the building inspector, dimensionally conforming to the building and zoning codes in every way — will be "out of character" and "materially alter the streetscape," and how that will affect him — three houses away — in a way protected by the zoning bylaw, was not explained or supported.Further relevant facts are set forth in the Analysis section below.

Analysis

For this court to have subject matter jurisdiction over this case, Mr. Neurath must have standing to challenge the Board's decision. See Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 545–546 (2008) (affirming judgment of dismissal for lack of jurisdiction in G.L. c. 40A, § 17 appeal where plaintiffs failed to establish standing with credible evidence of their alleged traffic and other impacts); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996) (noting that standing is a "jurisdictional question"). Only a "person aggrieved" has standing to make such a challenge. G.L. c. 40A, § 17. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012). To be "aggrieved" within the meaning of § 17, one must suffer an infringement of a "specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 30 (2006). See Marashlian, 421 Mass. at 721. "Aggrievement requires a showing of more than minimal or slightly appreciable harm." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121 (2011). "The injury must be more than speculative," Marashlian, 421 Mass. at 721, and must be "special and different from the injury the action will cause the community at large." Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005). "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." Kenner, 459 Mass. at 122.

Those who qualify as "parties in interest" under G.L. c. 40A, § 11 enjoy a rebuttable presumption that they are "persons aggrieved." See Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 257-258 (2003). Mr. Neurath, however, does not, and he concedes that he does not, have the benefit of that presumption because his land does not abut 11 Byron Avenue LLC's, his land is not directly across the street from 11 Byron Avenue LLC's, and his land does not abut an abutter within three hundred feet of Mr. Neurath's property. See G.L. c. 40A, § 11 (defining "parties in interest"). Mr. Neurath therefore "must prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Rd., LLC, 461 Mass at 701.

"Credible evidence" has both quantitative and qualitative components. See Butler, 63 Mass. App. Ct. at 441.

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.

Id. (internal citations omitted). See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570 , 575 (2016).

Mr. Neurath contends that he is "aggrieved" by the Board's decision in two ways: (1) by "traffic and safety concerns" and (2) by "aesthetic and density concerns." He has not, however, substantiated either of those claims with credible evidence, and therefore does not have standing.

Traffic and Safety

Traffic and safety concerns such as Mr. Neurath's are "beyond the scope of common knowledge, experience and understanding" and therefore must be supported by expert evidence to establish aggrievement. Standerwick, 447 Mass. at 36 (internal quotations and citations omitted) (acknowledging court has discretion to decide whether expert evidence is required). See Twardowski v. Ukstins, 19 LCR 431 , 436 (2011) (HMG) (expert evidence typically required to establish traffic and parking-based aggrievement); Nihtila v. City of Brockton Zoning Bd. of Appeals, 19 LCR 395 , 396 (2011) (HMG) ("[E]xpert knowledge and skill are required if one is to properly evaluate the impact of an alleged prospective increase in traffic and parking, as well as safety concerns of the sort alleged by the plaintiffs."); Kane v. Chan, 17 LCR 107 , 108 (2009) (KFS) ("[C]laims of harm . . . due to . . . traffic . . . are required to be supported by expert evidence. . . . "); Martinonis v. Movalli, 15 LCR 532 , 534 (2007) (GHP)("[I]ntuitive conclusions about what will and will not exacerbate traffic are not countenanced by the courts; real proof based on traffic engineering and expert study and analysis is required to prove traffic harms and to show their particular and specialized adverse effect on the plaintiff."); Hilltop Gardens Inv. LLC v. JMK Dev., LLC, 13 LCR 202 , 206 (2005) (KCL) ("Traffic impact is a matter for expert testimony."). See also Kenner, 459 Mass. at 124 (speculative traffic flow and safety concerns insufficient to confer standing); Brookins v. Boston Zoning Comm'n, 24 LCR 643 , 647 (2016) (JCC) (plaintiff's "speculative and unsupported personal opinion" insufficient to establish aggrievement on basis of parking and traffic impacts); Lowell v. Marquis, 16 LCR 205 , 206 (2008) (KCL) (alleged traffic impacts not supported by expert evidence "too speculative and remote to convey standing").

Mr. Neurath's assertion that he is aggrieved because of traffic and safety impacts fails because he provided no expert evidence in support of that claim. Even assuming that such expert evidence is unnecessary, there is no credible evidence in the record that substantiates his traffic and safety concerns. Mr. Neurath relies on his own lay person's affidavit, which provides nothing more than conjecture and his personal opinion regarding the effects of 11 Byron Avenue LLC's new house. That is insufficient to establish standing. See Butler, 63 Mass. App. Ct. at 441.

As Mr. Neurath's counsel himself noted at oral argument, there is presently little traffic on Byron Avenue. Traffic might slightly increase because of 11 Byron Avenue LLC's new house, but there is no indication that such an increase will adversely affect Mr. Neurath's property. With the 11 Byron property located at the dead end to the right of the Lockwood Road/Byron Avenue intersection, and the Neurath property located down the street near the other dead end to the left of that intersection, vehicles traveling to and from the new house will not even pass Mr. Neurath's. The new 11 Byron house has its own driveway and garage for those vehicles to park and, if necessary, turn around. It is completely speculative to assume, as Mr. Neurath does, that the addition of one single- family home, on the opposite end of the dead end street that has hardly any traffic, will have any material traffic-based impact on the Neurath property.

Aesthetics and Density

Mr. Neurath's aesthetic and density concerns are also insufficient to confer standing. [Note 10] Mr. Neurath asserts that his property is more exposed "to the lights, noise, and view of traffic on Maple Street" because vegetation was removed from 11 Byron Avenue LLC's property in connection with the new construction. He also contends that 11 Byron Avenue LLC's new, larger home is out of character with the existing homes in the neighborhood. However, that is Mr. Neurath's personal opinion, which is not enough to confer standing. See Butler, 63 Mass. App. Ct. at 441.

To the extent the new house in fact has such impacts, Mr. Neurath has not shown that their affect on his property will be more than de minimis. His concerns are particularly tenuous given the distance between the two properties. As shown in the photographs submitted with the Neurath Affidavit, the new 11 Byron house is barely visible from Mr. Neurath's property. The two properties are on opposite ends of the street, and are physically separated by three other houses. Maple Street is further separated from Mr. Neurath's property by the 11 Byron parcel, its landscaping and other vegetation, and the new house itself.

More importantly, it is not enough to simply assert, as Mr. Neurath does, that such impacts exist. To have standing, it is Mr. Neurath's burden to show, with credible evidence, that he is harmed by those impacts in a way that is protected by the zoning bylaw. See 81 Spooner Rd., LLC, 461 Mass at 700-701; Kenner, 459 Mass. at 120-124;

Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 602-603 (2011) (plaintiffs must show "harm specific to their property" to have standing based on impact on view). He has not done so, and thus does not have standing based on his alleged aesthetic and density impacts.

Conclusion

For the foregoing reasons, Mr. Neurath lacks standing to challenge the Board's decision. This court thus lacks subject matter jurisdiction over this appeal. 11 Byron Avenue LLC's and the Board's motions to dismiss are therefore ALLOWED, and Mr. Neurath's claims are DISMISSED in their entirety, WITH PREJUDICE.

Judgment shall enter accordingly.


FOOTNOTES

[Note 1] 11 Byron Avenue LLC is the owner of the property at issue. The complaint, however, names "11 Byron LLC" as a defendant.

[Note 2] The building commissioner issued a foundation permit and a building permit allowing the construction of the house. The Board's decision affirms the issuance of both of those permits.

[Note 3] As Mr. Neurath's counsel stated at oral argument, Byron Avenue has "virtually no traffic. It is not a through road. The only folks who drive on that road are the owners of the homes and their guests."

[Note 4] Both properties are located in the RS (One-Family Dwelling) zoning district.

[Note 5] The existing 11 Byron house is not one of the previously described five single-family homes on Byron Avenue.

[Note 6] The parties dispute whether and, if so, the extent to which the 11 Byron property is a protected pre-existing, nonconforming lot. I need not, and do not, make any finding regarding the issue because Mr. Neurath has no standing to raise it.

[Note 7] More specifically, Mr. Neurath contends that the Board misapplied § 135-8.4.1 of the zoning bylaw, which allegedly permits certain changes to nonconforming structures and provides that some of those changes can be made pursuant to building permits as of right. Section § 135-8.4.1 is not part of the record on the motion to dismiss.

[Note 8] Mr. Neurath's oral motion to be allowed to supplement his opposition to the motions to dismiss with expert testimony (after being alerted to the problem) was denied. Dispositve motions like these are not to be taken lightly. See Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949 , 949 (1983). Mr. Neurath had the opportunity to present expert evidence to support his claims, but he failed to do so. His counsel did not request to supplement the record until the end of the conference, after the court reiterated its concerns and after counsel for the defendants highlighted the inadequacies of Mr. Neurath's claims.

[Note 9] If there is, as his counsel stated, "virtually no traffic" on Byron Avenue, even a 20% addition is still "virtually no traffic."

[Note 10] Concerns regarding visual impacts are generally not sufficient to confer standing unless the relevant zoning bylaw protects such interests. See Kenner, 459 Mass. at 120-121. I make no finding as to whether Lexington's zoning bylaw does so for two reasons. First, it is unnecessary to make such a finding because, assuming Mr. Neurath's asserted aesthetic concerns are protected, he has not established standing on that basis. Second, I decline to make such a finding based on the presently limited record, which contains only a brief excerpt of the zoning bylaw.