MISC 17-000233

August 4, 2017

Middlesex, ss.



Pursuant to G. L. c. 40A, § 17, Plaintiff Debra Waller (Plaintiff) appealed a decision of the Newton Zoning Board of Appeals (Board), upholding the issuance of a building permit to Defendant General Electric (GE) for the installation of a solar canopy on a parking garage servicing Defendant Newton-Wellesley Hospital (Hospital). Plaintiff alleges the proposed installation poses an increased risk of fire and toxic smoke to the community generally and to her property specifically.

Defendants Mohammed Alqaraghuli, GE, the Hospital and Partners Healthcare Systems, Inc. (hereinafter, collectively, the Non-Municipal Defendants) moved to dismiss pursuant to Mass. R. Civ. P. 12(b)(1), and 12(b)(6), on May 23, 2017. On June 1, 2017, the Board, whose members are Defendants, moved to dismiss pursuant to Mass. R. Civ. P. 12(b)(1). A hearing on the motions was held on July 5, 2017, at which all parties were heard. [Note 1]

The Board and the Non-Municipal Defendants (collectively, Defendants) allege Plaintiff is not a person aggrieved by the Board's decision and therefore lacks standing to maintain this action under G. L. c. 40A, § 17. The Non-Municipal Defendants also argue Plaintiff has failed to state a claim upon which relief could be granted. For the reasons discussed below, the court finds that both motions under Mass. R. Civ. P. 12 (b)(1) and (6) have merit and are ALLOWED.

I. Motion to Dismiss – Mass. R. Civ. P. 12(b)(1)

In reviewing a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. 12(b)(1), the court accepts as true the factual allegations of the plaintiff's complaint, as well as any favorable inferences which may reasonably be drawn therefrom. Ginther v. Comm'r of Ins., 427 Mass. 319 , 322 (1998). The court may consider documents and other materials outside the pleadings and resolve any factual disputes between the parties. Audoire v. Clients' Sec. Bd., 450 Mass. 388 , 390 n.4 (2008), citing Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 710 (2004); Wooten v. Crayton, 66 Mass. App. Ct. 187 , 190 n. 6 (2006). Lack of subject matter jurisdiction may be raised at any time by the parties or the court itself, and cannot be waived. Fed. Natl'l Mortg. Assoc. v. Gordon, 91 Mass. App. Ct. 527 , 531 (2017) (citations omitted). The following relevant facts are presented by the pleadings and augmented by the documents filed by all parties in connection with Defendants' motions.

1. The Board's decision, dated April 7, 2017, affirms the issuance of a building permit authorizing the installation of a solar array canopy (Solar Canopy) by Defendant GE on the roof of an existing parking garage located at the Hospital at 2014–2060 Washington Street in Newton. The Newton Inspectional Services Department (ISD) issued a "by right" building permit for the Solar Canopy on December 8, 2016. Plaintiff timely appealed the issuance of the building permit to the Board on January 6, 2017.

2. The location of the parking garage is shown on the plan attached as Exhibit 1 to the affidavit of Matthew DiNisco, filed in support of the Non-Municipal Defendants' Motion to Dismiss. DiNisco is a Director of Construction and Project Management for Current, an operating unit of GE.

3. The City of Newton Zoning Ordinance (Ordinance) does not contain any provisions independently regulating solar installations in any zoning districts. The parking garage is located in a Single Residence (SR-2) zoning district.

4. ISD reviewed the Solar Canopy plans for compliance with the Ordinance and State Building Code before issuing the building permit. The Newton Fire Department reviewed the plans for compliance with the State Fire Prevention Code.

5. The Ordinance does not expressly establish dimensional requirements for solar energy systems. The parking garage upon which the Solar Canopy will be installed is set back sixty feet from the nearest lot line, which exceeds all setback requirements listed in the Ordinance's dimensional table for the SR-2 zoning district. As proposed, the Solar Canopy will overhang the garage on some sides.

6. Plaintiff lives at 10 Bonaire Circle in Newton. Plaintiff's lot does not directly abut the lots on which the parking garage sits, but Plaintiff may be an abutter to an abutter within 300 feet. [Note 2]

7. Before and during her appeal to the Board, Plaintiff contacted City officials to express her concerns with the potential fire risks of the Solar Canopy. Bruce Proia, the Newton Fire Department Chief, and John Lojek, the ISD Commissioner, jointly responded to her inquiries in a letter dated March 8, 2017, stating that the Newton Fire Department had found the plans compliant with the State Fire Prevention Code. They further stated the proposed project will be inspected regularly throughout by ISD, and that the City of Newton has issued over 539 permits for residential solar arrays and 14 permits for larger commercial arrays.

8. A hearing on Plaintiff's appeal was held on February 28, 2017. The Board affirmed the issuance of the building permit in a written decision filed with the City Clerk on April 7, 2017.

II. Plaintiff Lacks Standing To Challenge The Board's Decision

Defendants assert Plaintiff has failed to set forth allegations that she will suffer a particularized injury or harm to a legal right protected by the Zoning Act, G. L. c. 40A. In order to have standing under Section 17 of the Zoning Act, the right or interests Plaintiff claims are injured must be ones the Zoning Act or the Ordinance intend to protect. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 27–28 (2006), citing Circle Lounge & Grille, Inc. v. Bd. of Appeals of Boston, 324 Mass. 427 , 431 (1949). Defendants argue Plaintiff's sole claim of aggrievement – an alleged increase in risk of fire and toxic smoke [Note 3] caused by the Solar Canopy – is not a cognizable zoning injury and, further, is speculative, unsupported by objective evidence, and not a harm special and distinct from one affecting the general public. This court agrees.

Plaintiff claims she enjoys presumptive standing as a "party-in-interest" pursuant to G. L. c. 40A, § 11, which includes abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within 300 feet of the property line of a proposed project. Plaintiff claims she is an abutter to an abutter within 300 feet of the parking garage, and is a direct abutter to a set of contiguous lots owned by the Hospital and Partners Healthcare. A defendant can rebut a plaintiff's presumption of standing by demonstrating, as a matter of law, the alleged aggrievement is not an interest protected under the Zoning Act or, alternatively, by presenting credible evidence to warrant a finding contrary to the presumed fact of aggrievement. Standerwick, 447 Mass. at 35–36. At oral argument, the Non-Municipal Defendants stated they were willing to concede Plaintiff is a party in interest for purposes of these motions, without determining whether she is an abutter or an abutter to an abutter within 300 feet, because they could sufficiently rebut that presumption. The Board did not concede Plaintiff is a party in interest, arguing she does not qualify as an abutter to an abutter within 300 feet. [Note 4]

If a defendant succeeds in rebutting the plaintiff's presumed standing, the presumption recedes and the plaintiff must "prove standing by putting forth credible evidence to substantiate the allegations" 81 Spooner Rd., LLC, 461 Mass at 700. In that event, a plaintiff must provide "direct facts" and not "speculative personal opinion" that the alleged aggrievement is "special and different" from general community concerns. Standerwick, 447 Mass. at 33. The alleged aggrievement must also constitute more than a minimal or slightly appreciable harm: "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). Credible evidence requires both qualitative elements, with "specific factual support" provided for each of the alleged particularized aggrievements, and qualitative elements, requiring evidence to be that upon which a reasonable person could rely to conclude a claimed injury likely will result from a board's decision. Butler, 63 Mass. App. Ct. at 441.

a. Fire

Plaintiff's alleged aggrievement stems from her concerns about increased risk of fire caused by operation of the Solar Canopy. Specifically, she fears that her house is the closest residence to the project and the proximity poses a greater risk of fire should one begin at the Solar Canopy and spread. She also alleges an increased risk of harm to individual firefighters responding to a fire involving solar power. Concerns over fire, however, are insufficient to confer standing. Generally, fire safety and compliance with state fire regulations are not protected interests under zoning laws. See Rinaldi v. Bd. of Appeals of Boston, 50 Mass. App. Ct. 657 , 660 (2001). Thus, concerns over fire safety fall under the State Building Code and Fire Prevention Code, not under local zoning ordinances. If Plaintiff seeks relief or enforcement of those codes, she must first exhaust the administrative remedies available before resorting to judicial review. See G. L. c. 30A, § 14; Rinaldi, 56 Mass. App. Ct. at 673.

Even if this court found Plaintiff's alleged harm provided a cognizable basis for standing, Plaintiff has failed to produce any direct and non-speculative evidence in support of her allegation of an increased fire risk, nor demonstrated that her injury is distinct from those that may be suffered by her neighborhood generally. See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570 , 573 (2016) (stating plaintiffs must put forth "credible evidence" to show that they will be injured or harmed by proposed changes to an abutting property, and not just that they will be "impacted" by such changes). Plaintiff provided only speculative opinion, such as findings from an on-going Fire Protection Research Foundation study and a series of newspaper articles documenting solar-related fires across the country. This does not constitute the type of credible evidence required to support Plaintiff's claim of aggrievement, even if concerns regarding risk of fire were interests protected by the Zoning Act or the Ordinance.

Drawing all inferences in Plaintiff's favor, including crediting her concerns about fire risk, Defendants successfully rebutted Plaintiff's allegations. Defendants submitted an affidavit of Michael McNamara (McNamara), Deputy Chief of the Newton Fire Department, who is familiar with the property at issue. McNamara stated the Solar Canopy complied with all applicable fire safety codes, that it is sufficiently accessible to the Newton Fire Department, and that Fire Department staff are well-trained and prepared to handle a solar fire. Plaintiff has not provided any non-speculative opinion (expert or otherwise) regarding her concerns of increased fire risk to her property.

b. Toxic Smoke

As noted above in footnote 3, Plaintiff raised an additional claim of aggrievement in her late-filed oppositions and at the July 5, 2017 hearing: the risk of toxic smoke caused by fires at the Solar Canopy. In support, Plaintiff submitted an affidavit of Robert A. DiPoli (DiPoli), the retired Fire Chief of the Needham Fire Department, in which he raises concerns that firefighters will have insufficient access to the Solar Canopy, impeding their ability to handle fires and making Plaintiff's house more susceptible to damage from smoke. DiPoli also opined that "toxic smoke from a fire in the proposed photovoltaic array can reach the plaintiff's home," although he did not think an actual fire would reach her home. [Note 5] As addressed above, Defendants have demonstrated those concerns are not zoning-related, and do not provide a legally cognizable basis for standing in this action.

Just as Plaintiff's claims of increased risk from fire were deemed speculative and not protected under the Zoning Act, so too are her claims of alleged harm from toxic smoke. Even if these potential injuries fell within the interests sought to be protected under the Zoning Act (as opposed to the State Fire Code and other regulatory schemes), Plaintiff has failed to show how the risk of toxic smoke targets her specially and differently from others in the neighborhood by presenting expert testimony analyzing the effect of wind direction and other matters on the spread of toxic fumes. Normally, those issues would be reserved for establishment at trial, but that is not called for because the aggrievement is not derived from an interest the Zoning Act protects. For all of these reasons, Plaintiff's claims of aggrievement from smoke do not confer standing, and this court therefore does not have jurisdiction to review the Board's decision.

III. Motion to Dismiss – Mass. R. Civ. P. 12(b)(6)

The Non-Municipal Defendants also moved to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), asserting Plaintiff failed to state a claim upon which relief could be granted, even if she has standing to appeal the Board's decision. Plaintiff argues that the Board incorrectly applied G. L. c. 40A, § 3, which provides "[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare." Plaintiff claims the Board exceeded its authority in concluding that provision allows solar energy systems in all Newton zoning districts. She argues that because the Ordinance prohibits uses which are not expressly allowed, the Non-Municipal Defendants' Solar Canopy (which Plaintiff characterizes as a "commercial power plant," also not allowed), is not allowed in any district. [Note 6] However, Plaintiff's analysis ignores the provisions of G. L. c. 40A, § 3, which expressly address this situation, in which a solar use is completely prohibited by virtue of its omission from a local zoning ordinance. This court finds the Board's interpretation of Newton's Ordinance is a reasonable one, fully consonant with the provisions and purposes of G. L. c. 40A, §3.

Plaintiff therefore failed to plead any basis for overturning the Board's decision as legally untenable, or arbitrary or capricious. [Note 7] Although this court has already decided Plaintiff lacks standing and the action will be dismissed for lack of subject matter jurisdiction, Plaintiff has also failed to state a claim upon which relief may be granted. The Non-Municipal Defendants' motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6) is ALLOWED.

IV. Conclusion

Accordingly, Defendants' Motions to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1), and (6), are ALLOWED, and Plaintiffs' complaint will be DISMISSED. Judgment to issue accordingly.


[Note 1] Plaintiff was allowed, upon request, to file one opposition to both motions to dismiss on or before June 30, 2017. This deadline was extended to July 3, 2017, again at Plaintiff's request. Plaintiff emailed several documents to the court and opposing counsel at the end of the day on July 3, 2017, as well as a document titled "Concise Statement of Additional Facts in Opposition to Newton-Wellesley [et al.,'s] Motions", emailed to the court on July 4, 2017. Due to the timing of the email and the Fourth of July holiday, the e mails were not reviewed by the court, nor accepted for docketing, until the morning of the hearing when hard copies were presented in court. Counsel for the Board and the Non-Municipal Defendants stated they did not object to any of the documents, except the one filed on July 4, 2017. The court struck Plaintiff's July 4, 2017 filing, as well as a shorter three-page filing also titled Concise Statement of Additional Facts" dated July 3, 2017, as untimely filed.

[Note 2] See discussion, supra at 4, on the parties' respective positions on Plaintiff's status as a party-in-interest under G. L. c. 40A, § 11.

[Note 3] Plaintiff, in her late-filed opposition papers, raised, for the first time, aggrievement caused by the risk of toxic smoke resulting from fire. Defendants were given an opportunity after the July 5, 2017 hearing to address that claim with additional briefing. The Non-Municipal Defendants did so, filing a reply brief on July 7, 2017.

[Note 4] Although Plaintiff received a statutory notice of the hearing, the Board asserts she only did so because the Board chose to extend the distance for notice to the public to 500 feet, which included Plaintiff. For the purposes of the motions to dismiss, this court assumes Plaintiff is a party-in-interest.

[Note 5] DiPoli Aff. at ¶ 5.

[Note 6] In support of her position, Plaintiff estimates the Solar Canopy will generate approximately $530,000 to $600,000 in revenue per year for the Hospital.

[Note 7] Plaintiff further argues that a municipality may regulate solar energy systems "where necessary to protect the public health, safety and welfare," and that the Board should have overturned the issuance of the building permit to protect against her alleged risk of fire. The statute, however, allows reasonable regulation through the Ordinance, not by a case-by-case determination by the Board, which Plaintiff seeks.