R. THOMAS WALSH v. TOWN OF DENNIS PLANNING BOARD and the TOWN OF DENNIS.

This is an appeal pursuant to G. L. c. 40A, § 17, challenging the grant of a special permit by the Dennis Planning Board (the "Board") to the town of Dennis (the "Town") (collectively, the "defendants") authorizing the construction of a group home for veterans, who are either homeless or at risk of becoming homeless, on the Town's property located at 1341 Route 134 in East Dennis (the "Property"). The plaintiff, R. Thomas Walsh, owns property abutting the Property and contends that the Board exceeded its authority in granting the special permit. The defendants assert that Walsh lacks standing to challenge the special permit because the Town's zoning bylaw does not protect the interests on which he bases his status as an "aggrieved person."

On November 15, 2017, the court held a hearing on the parties' cross-motions for summary judgment. For the reasons set forth below, the defendants' motion for summary judgment is ALLOWED and the plaintiff's cross-motion for summary judgment is DENIED.

FACTS

The material undisputed facts pertinent to these cross-motions for summary judgment are as follows:

THE PARTIES AND THEIR PROPERTIES

1. The plaintiff R. Thomas Walsh and his wife Linda Walsh own property at 111 Prince Way in Dennis. Their property is improved with a single-family residence which fronts on Prince Way.

2. Walsh's residence includes an outdoor deck attached to the rear of the residence and, on the side nearest the Property, an outdoor shower attached to the rear of the residence towards the left side of the residence, and a back yard with a fire pit, swing set, and sitting area. [Note 1]

3. The defendant Town is the record owner of the Property, located at 1341 Route 134 in Dennis. The Property is a rectangular parcel of land with 110 feet of frontage on Route 134, a width of 110 feet, a depth of 150 feet, and comprising 16,500 square feet of land.

4. The western, rear lot line of the Property abuts the eastern lot line of Walsh's property for a distance of 110 feet, such that the rear of the Property abuts Walsh's back yard. The rear of the Property sits at a higher elevation than Walsh's residence.

5. The Property is a vacant lot and is located in the "R-40" zoning district under the Dennis Zoning By-law (the "Bylaw"). Pursuant to § 2.3.2 of the Bylaw, the minimum allowed lot area for a buildable lot in the R-40 zoning district is 40,000 square feet, the minimum allowed lot frontage is 50 feet, and the minimum allowed lot width is 100 feet.

6. The lot line separating Walsh's property from the Property is heavily vegetated with a variety of coniferous and deciduous trees. [Note 2]

THE TOWN'S PROJECT

7. On August 24, 2016, the Town filed an application seeking a special permit under the Bylaw's municipally sponsored housing projects provision, § 4.9.2.4, to construct a five-bedroom dwelling for homeless/at risk of being homeless veterans (the "Proposed Dwelling").

8. The Proposed Dwelling would have a front setback of 58.1 feet, a right side setback of 25 feet, a left side setback of 32 feet, and a rear setback of 31.8 feet. The building coverage on the lot will be 13.7%. The Proposed Dwelling would consist of two stories and measure 34.25 feet in height. [Note 3]

9. The Proposed Dwelling will be served by a circular driveway with two curb cuts providing access to Route 134. The Property will have three off-street parking spaces.

10. A 20-foot vegetated buffer will surround the Proposed Dwelling.

11. At least fifteen to twenty trees, exceeding 20 feet in height, will remain along the north and west sides of the Property. [Note 4]

12. As part of the landscaping, evergreens measuring 7 feet to 8 feet will be installed around the perimeter of the Property and grow to a height of 15 to 20 feet within four to eight years. [Note 5]

13. The closest distance between the nearest window for the Proposed Dwelling and the nearest corner of Walsh's outdoor, rear deck is proposed to be approximately 68 feet; from a first floor bedroom to the same corner is approximately 72 feet; and from an upstairs bedroom window to the same corner is approximately 79 feet. All of the views of Walsh's outdoor, rear deck from the Proposed Dwelling will be through the vegetated buffer, including the existing trees and vegetation on Walsh's property, the existing trees and vegetation on the Property, and the vegetation installed as part of the landscaping for the Proposed Dwelling.

14. Post-construction stormwater runoff from the Property will be controlled for ten-year and twenty-five-year storm events, meaning there will be no increase in the rate of stormwater runoff from the Property in up to twenty-five year storm events over current conditions. [Note 6]

15. Absorption of additional runoff will be facilitated in part by three drywells, consisting of pre-cast concrete liners with diameters of 6 feet and depths of 3.5 feet. The drywells will be surrounded by a minimum of 1 foot of washed 1.5 inch stone. [Note 7] As a condition of the special permit approval, roof drains will direct runoff to the drywells. [Note 8]

16. Additional absorption of runoff will be facilitated by a rain garden, which will be installed on the Property; finished grading on the Property will direct surface water flow towards the rain garden. [Note 9]

17. The driveway will be cross-pitched at one-quarter inch per foot to direct driveway runoff to a gutter outlet, and to a low point in the driveway island. [Note 10]

18. To further control drainage, the plantings within the 20-foot vegetated buffer will be placed on top of a berm of soil, providing a berm at the edge of the Property. [Note 11]

19. On August 18, 2016, the Town's health director, Terence M. Hayes, issued a memorandum to the Board indicating that the septic plan for the Proposed Dwelling complies with Title V of the State Environmental Code, the Town's Regulations for the Subsurface Disposal of Sewage, and will "adequately support the proposed five-bedroom dwelling . . . ." [Note 12]

20. On September 19, 2016, the Board held a public hearing on the Town's application for a special permit. The Board voted unanimously to approve the special permit.

21. On September 20, 2016, the Board filed a written decision with the Town Clerk, granting the special permit, consistent with the Board's vote to issue the special permit.

22. On October 6, 2016, the plaintiff filed a timely complaint appealing the Board's decision pursuant to G. L. c. 40A, § 17.

THE BYLAW

23. Section 1.2 of the Bylaw states that its purpose is "to promote the health, safety, convenience, amenity, and general welfare" of the Town's inhabitants, with the following objectives:

"To lessen congestion in the ways; to conserve health; to secure safety from fire, flood, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; to recognize the need for housing for persons of all income levels; to facilitate the adequate provision of transportation, water, water supply, drainage, schools, parks, open space, and other public requirements; to conserve the value of land and buildings, including the conservation of natural resources and the prevention of blight and pollution of the environment; to encourage the most appropriate use of land throughout the town, including consideration of the master plan, and to preserve and increase amenities by the promulgation of regulations to fulfill said objectives."

24. Section 4.9 of the Bylaw is entitled "Provisions to Encourage the Development of Affordable Housing in Dennis" and contains separate subsections for various types of affordable housing projects. Section 4.9.1 states that the overall purpose of § 4.9 is:

"to further the goal of encouraging various lot sizes and housing types for persons of various age and income levels in accordance with Massachusetts General Laws, Chapter 40A, Section 9 which allows municipalities to adopt "incentive" ordinances for the creation of affordable year round housing, and for the purpose of:

a.) helping people who, because of rising land prices, have been unable to obtain suitable housing at an affordable price and,

b.) maintaining a stable economy by preventing out-migration of residents who provide essential services.

The Planning Board is hereby designated the special permit granting authority for all Affordable Housing Development and Affordable Housing Apartment applications under this by-law, and shall have the power to hear and decide applications for special permits as provided in this section. The Planning Board may adopt regulations for carrying out its duties under this By-law."

25. Relevant to the present action is § 4.9.2.4, entitled "Municipally Sponsored Housing Projects." Section 4.9.2.4.1 sets forth the general objectives of § 4.9.2.4 and states:

"This section is intended to allow the Dennis Board of Selectmen to act as a sponsor for public or public/private joint venture affordable housing projects which:

a. encourage practical residential development in the reuse of existing structures;

b. promotes in-fill (development of vacant lots in an otherwise built-up area) residential development opportunities;

c. is compatible with the adjacent neighborhood;

d. encourages development of economically priced housing and a variety of types of housing; and

e. fosters flexibility and creativity in the creation of affordable housing."

26. Section 4.9.2.4.2, entitled "Modified Procedures" provides as follows:

"A municipally sponsored housing project may be allowed upon issuance of a special permit provided that the Planning Board finds that the conditions present on the site are adequate to support the proposed use, protect the surrounding neighborhood, and meet the intended goals of providing affordable housing, and further meets the following requirements:

a. the minimum requirements of Sections 2.3, 3.1 and 4.2 shall not apply provided however that there must be:

a. a maximum height of 35 feet and two stories;

b. a maximum building coverage of 15%;

c. a maximum total site coverage of 50%;

d. a minimum building separation of twenty feet; and

e. a determination that the parking will be adequate in number and size to serve the proposed use of the site.

b. Minimum Area of the Tract to be Developed under Section 4.9.2.3.1 may be less than 2 ½ acres;

c. the maximum density of the Tract to be Developed may be greater than one bedroom per 10,000 sf of land area based upon a recommendation of the Dennis Board of Health that the waste water system recommended for the site meets all state and local environmental standards for the protection of public health and water quality;

d. The tract of land to be developed shall provide for front, rear and side setbacks of 20 feet, which shall constitute vegetated buffers, except for where crossed by site driveways; and

e. the minimum parking requirement may be less than 2 parking spaces per residential unit. The Planning Board shall have the discretion to reduce all other off-street parking requirements as otherwise applicable under Section 3.1 based upon a finding that the parking is sufficient to meet the needs of the proposed use of the property." [Note 13]

OTHER RELEVANT BYLAWS

27. The Town has a "Stormwater Management" bylaw (the "Stormwater bylaw") separate and apart from the Bylaw, with accompanying rules and regulations.

28. Under the Stormwater bylaw, "[a]ll persons that create a construction site or hotspot area are required to satisfy the purpose and intent of this bylaw and in accordance with the 'Dennis Stormwater Management Rules and Regulations,' as revised." [Note 14]

29. The Dennis Stormwater Management Rules and Regulations define a "construction site" as "any site where activity is proposed or occurs that involves the alteration of more than five hundred (500) contiguous square feet of land." [Note 15]

DISCUSSION

SUMMARY JUDGMENT STANDARD

"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56(c). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

STANDING

The initial inquiry for the court in an appeal pursuant to G. L. c. 40A, § 17, is whether the plaintiff is a "person aggrieved." Abutters who are entitled to notice of a zoning board's hearings "enjoy a rebuttable presumption" that they are aggrieved persons. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Although an abutter enjoys a presumption of aggrievement, a plaintiff with aggrieved person status "always bears the burden of proving aggrievement necessary to confer standing." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 701 (2012), citing Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34-35 (2006). A defendant seeking to rebut a plaintiff's presumption of standing must offer evidence "warranting a finding contrary to the presumed fact." Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). "If a defendant offers enough evidence to warrant a finding contrary to the presumed fact, the presumption of aggrievement is rebutted, and the plaintiff must prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 701. One way a defendant can rebut the presumption is "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." Id. at 702, citing Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011); Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 30-31. Alternatively, 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 (and cases cited).

Following rebuttal of the presumption by a defendant, plaintiffs have "the burden of proving, by direct facts and not speculative evidence, that they would suffer a particularized injury" that is "special and different from the concerns of the rest of the community." Kenner v. Zoning Bd. of Appeals of Chatham, supra, 459 Mass. at 120; Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 33, quoting Barvenick v. Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). "Aggrievement requires a showing of more than 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, supra, 459 Mass. at 121-122. 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. Waltham, 63 Mass. App. Ct. 435 , 441 (2005), quoting Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 721. 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." Butler v. Waltham, supra, 63 Mass. App. Ct. at 441 (internal citation omitted). The facts offered by the plaintiff must be more than merely speculative. See Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008).

Presumption of Standing

The court must first determine whether Walsh is presumed to be a "person aggrieved" under G. L. c. 40A, § 17. Walsh's property shares a boundary with the Property and Walsh is therefore an abutter to the Property. Thus, Walsh is presumed to be a person aggrieved by the Board's decision with standing to challenge it.

Rebuttal of the Presumption

Because Walsh has the benefit of a presumption that he is a "person aggrieved," the defendants may rebut the presumption: by showing that Walsh's claimed aggrievement is only with respect to an interest not protected by the Bylaw; by producing credible evidence contradicting Walsh's claimed aggrievement; or by showing that Walsh lacks any evidence that he would suffer harm. Walsh claims that he is aggrieved by the Board's decision because the Proposed Dwelling will cause a diminution in the value of his property, will result in a loss of privacy, will contribute to overcrowding of land and an undue concentration of population, and will create a risk of flooding to his property.

The main thrust of the defendants' argument is that any presumption of standing Walsh enjoys is rebutted because § 4.9.2.4 of the Bylaw, a provision for the development of affordable housing, does not protect any of the interests that Walsh claims will be harmed by the construction of the Proposed Dwelling. As such, they argue that Walsh does not have standing to challenge the special permit.

Preservation of Real Estate Values of Property Abutting an Affordable Housing Development Is Not an Interest Protected by the Bylaw.

The defendants argue that § 4.9.2.4 of the Bylaw is akin to G. L. c. 40B, the legislative scheme enacted to promote the development of affordable housing. See generally Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. 20 . In Standerwick, the Supreme Judicial Court emphasized that, "standing to challenge a zoning decision is conferred only on those who can plausibly demonstrate that a proposed project will injure their own personal legal interests and that the injury is to a specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect." (emphasis in original) 447 Mass. at 30. The defendants contend that the purpose of the applicable bylaw provision at issue here, § 4.9.2.4, is to promote affordable housing in the Town. Like the SJC's treatment of G. L. c. 40B in Standerwick, the defendants argue that because § 4.9.2.4 relaxes otherwise restrictive zoning requirements to facilitate the creation of affordable housing, conferring standing on Walsh on the basis that the Proposed Dwelling will cause a diminution in the value of his property, lead to overcrowding, and result in a loss of his privacy would frustrate the purpose of § 4.9.2.4. See Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 30 (concluding allowing standing to challenge G. L. c. 40B permit based on diminution in property value would frustrate purpose of Legislature). "Of particular importance, the right or interest asserted must be one that the statute under which a plaintiff claims aggrievement intends to protect." Id. at 27-28. Whereas in Standerwick the court was called upon to compare the relative interests protected by G. L. c. 40A and G. L. c. 40B, in the present action the court must determine whether the interests protected by the Bylaw generally, and in particular protection of property values, are available to confer standing where the proposed project is one governed by the more relaxed development standards of the affordable housing provisions of Section 4.9.2 of the Bylaw.

The general purposes of the Bylaw are articulated in Section 1.2, and they include the objectives 'to recognize the need for housing for persons of all income levels; . . . to conserve the value of land and buildings . . . ." Section 4.9 of the Bylaw, entitled, "Provisions To Encourage The Development Of Affordable Housing In Dennis," has among its stated purposes, "to further the goal of encouraging various lot sizes and housing types for persons of various age and income levels . . . and for the purpose of: a.) helping people who, because of rising land prices, have been unable to obtain suitable housing at an affordable price, and, b.) maintaining a stable economy by preventing out-migration of residents who provide essential services." Bylaw, § 4.9.1. The subsection at issue here, which provides for the permitting of municipally sponsored developments, includes even more specific objectives for projects in which the Town is involved as a sponsor. Section 4.9.2.4.1 "is intended to allow the Dennis Board of Selectmen to act as a sponsor for public or public/private joint venture affordable housing projects which: . . . b. promotes in-fill (development of vacant lots in an otherwise built-up area) residential development opportunities . . . ."

These specific affordable housing objectives, which are intended to blunt the effect of "rising land prices," are of course at least partly at odds with the general purpose to "conserve the value of land and buildings . . . ." The general objectives of the Bylaw, as amplified by the specific objectives articulated in Sections 4.9 and 4.9.2.4.1 evince the intent of the Town, in enacting a special section to facilitate the construction of affordable housing of various types, to relax dimensional requirements and use restrictions so as to facilitate the construction of housing that can be afforded by those of various income levels in any part of the Town, without regard to otherwise restrictive regulations concerning density, setbacks and uses. These are the same types of concerns evinced by the Legislature in enacting G. L. c. 40B, and which prompted the Supreme Judicial Court to hold, "we have no hesitation in concluding that granting standing to challenge the issuance of a comprehensive permit under G. L. c. 40B, § 21, to those who claim a diminution in the value of their property frustrates the intent of the Legislature." Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 30. Thus, even though one of the general objectives of the Bylaw is to "conserve the value of land and buildings," where inflexible adherence to that objective would frustrate the specific objectives of enabling the development of housing for all income levels, and providing in-fill affordable housing, the general objective cannot be allowed to frustrate the specific objective.

The Bylaw itself recognizes this tension between the general objectives of the Bylaw and the specific provisions necessary for the effective development of affordable housing. As the Appeals Court observed in Davenport v. Planning Bd. of Dennis, "§ 4.9.2.3.6 of the by-law provides that where § 4.9.2 conflicts with another provision of the by-law, 'the provisions of Section 4.9.2 shall control.' Given the ambiguity in the by-law in this regard, we will not disturb the board's reasonable interpretation of its own bylaw." 76 Mass. App. Ct. 221 , 225, rev. denied 457 Mass. 1103 (2010). While § 1.2 seeks to "conserve the value of land and buildings," it also seeks to "recognize the need for housing for persons of all income levels." When interpreting a zoning bylaw, it "must be read in its complete context and be given a sensible meaning within that context. The intent of the by-law is to be ascertained from all its terms and parts as well as the subject matter to which it relates" (citations omitted). Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 478 (1986). Accordingly, in comparing G. L. c. 40A with G. L. c. 40B, "[t]he preservation of real estate values of property abutting an affordable housing development is clearly not a concern that the G. L. c. 40B regulatory scheme is intended to protect." Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 30. The same is the case with respect to the Bylaw, insofar as it pertains to affordable housing developed pursuant to Section 4.9 of the Bylaw. Notwithstanding the general statement in § 1.2 that one objective of the Bylaw is to "conserve the value of land and buildings," it is the conclusion of the court that this objective does not confer standing on an abutter, like the plaintiff in the present action, to contend that he is aggrieved by a diminution of value of his property as the result of the development of affordable housing next door.

Loss of Privacy and Density Concerns.

Walsh next claims that he is aggrieved because the Proposed Dwelling will result in a loss of his privacy. Loss of privacy is not an interest protected by § 4.9.2.4, and is not even an interest protected by the Bylaw in general; it cannot serve alone as a basis for standing. Where the concern for a loss of privacy is tied to an argument that increased density will affect privacy, it may be a cognizable injury that confers standing if the bylaw provides protection against density concerns. See 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"). Walsh claims aggrievement in the form of density concerns as he argues the Proposed Dwelling will contribute to overcrowding and undue concentration of population. Again, the defendants contend that the relevant bylaw, § 4.9.2.4, does not protect against overcrowding of land; rather, the very purpose of § 4.9.2.4 is to relax density requirements in order to allow a municipally sponsored affordable housing project. See Davenport v. Planning Bd. of Dennis, supra, 76 Mass. App. Ct. at 223. ("Section 4.9 provides express relief from density requirements for affordable housing developments"). Section 4.9.2.4 explicitly provides that the minimum requirements of §§ 2.3, 3.1, and 4.2 -- intensity regulations, off street parking requirements, and requirements related to multiple dwellings -- do not apply to a municipally sponsored housing project. Further, the density and other use requirements are only eliminated if a municipally sponsored affordable housing project can meet other criteria set forth in § 4.9.2.4.2, thus the defendants argue that § 4.9.2.4 does not serve to create a blanket approval of a municipally sponsored affordable housing project. The defendants point out that a municipally sponsored affordable housing project still has to conform to other criteria, which inter alia serve to protect the surrounding neighborhood, to proceed. The result would be otherwise if the applicant sought zoning relief for a density-related requirement of the Bylaw. See, e.g., 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. 692 (abutter had standing on basis of loss of privacy resulting from density-related variance).

The defendants produced evidence in the form of an affidavit by Richard Dadoly, the architectural designer who designed the Proposed Dwelling, and the special permit application the Town submitted to the Board, showing that the Proposed Dwelling conforms to all of the dimensional criteria in § 4.9.2.4.2.a. The Proposed Dwelling will have a maximum height of 34.25 feet and contain only two stories, in compliance with § 4.9.2.4.2.a(a). [Note 16] The maximum building coverage will be 13.7% and the cumulative lot coverage will be 35.8%, in compliance with §§ 4.9.2.4.2.a(b), (c). [Note 17] As to the parking requirement in § 4.9.2.4.2.a(e), the proposed three parking spaces are in compliance with Bylaw requirements and are otherwise adequate for the proposed use of the Property. [Note 18] Finally, the provision for building separation is inapplicable as the Proposed Dwelling will be the only building on the Property. The Proposed Dwelling meets all of the density-related requirements set forth in § 4.9.2.4.2.a. The density and use requirements in §§ 2.3, 3.1, and 4.2 do not apply to the Proposed Dwelling. Any argument by the plaintiff that a project complying with the distinct and separate density requirements applicable to an affordable housing development under § 4.9.2.4.2.a results in density-related injury to the plaintiff, does not constitute an allegation of a cognizable injury. Where a project complies with the density-related requirements of the Bylaw, the plaintiff cannot complain of a failure to comply with more stringent requirements that do not apply to the project.

Aside from the inapplicability of the dimensional requirements in §§ 2.3, 3.1, and 4.2 of the Bylaw, a municipally sponsored housing project must further meet additional requirements to qualify for a special permit, but ones that are more relaxed than those pertaining to non- affordable housing developments. Under § 4.9.2.4.2.b, the area of the land to be developed may be less than the 2.5 acres required for a non-municipally sponsored affordable housing development. Section 4.9.2.4.2.c allows a greater density per square feet of land if the Dennis Board of Health recommends that the site's waste water system meets state and local environmental standards; the defendants submitted Town health director Terence M. Hayes's memorandum to the Board showing that the Proposed Dwelling's septic plan meets all of the requirements. The required setbacks for a municipally sponsored housing project are 20 feet for the front, rear, and side, are to include vegetated buffers; the Proposed Dwelling exceeds all of the setback requirements. Lastly, under § 4.9.2.4.2.e, each residential unit may have fewer than two parking spaces, and the Board possesses the discretion to reduce all off-street parking requirements provided in § 3.1 if it finds that the parking sufficiently meets the needs of the proposed use. First, the off-street parking requirements of § 3.1 do not apply, and the Proposed Dwelling meets all of the substitute requirements of § 4.9.2.4.2.a, and second, the Proposed Dwelling is a single-family residence, and will have three parking spaces, exceeding the two spaces required for a single-family residence even if the requirements of § 3.1 were applicable. [Note 19] The defendants have shown that Walsh's claims of aggrievement rooted in privacy and density concerns are not protected by the Bylaw generally or by § 4.9.2.4 specifically, because § 4.9.2.4 expressly overrides the density and use regulations for conventional private developments, subject to substitute requirements, all of which have all been met. See 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 702.

To the extent that Walsh may have articulated concerns with respect to interests that are protected by the Bylaw, he has not articulated "direct facts and not speculative evidence, that [he] would suffer a particularized injury" that is "special and different from the concerns of the rest of the community" to overcome the defendants' rebuttal of his presumed standing. Kenner v. Zoning Bd. of Appeals of Chatham, supra, 459 Mass. at 120; Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 33, quoting Barvenick v. Aldermen of Newton, supra, 33 Mass. App. Ct. at 132. Offered facts that amount to no more than speculation may not serve as a basis for standing. Sweenie v. A. L. Prime Energy Consultants, supra, 451 Mass. at 543.

One concern Walsh expressed is that his wife and daughters-in-law will no longer feel comfortable using the outdoor shower, because residents at the Proposed Dwelling will be able to look down into the outdoor shower. He also voiced concerns that residents will be able to see into his windows. The defendants submitted evidence that the views from the Proposed Dwelling onto Walsh's property will be blocked by a vegetated buffer, and that residents will not be able to look into Walsh's windows from the Proposed Dwelling. [Note 20] Dadoly avers that "between the design and placement of the Proposed Dwelling, combined with the existing and new landscaping that will be installed, there will be few, if any, direct (i.e., unobstructed) views of the Walsh Property from the Proposed Dwelling." [Note 21] The defendants also submitted photographs taken by Lambton that depict the views from various vantage points that will exist in the Proposed Dwelling. The photographs reflect that any views to Walsh's property will be through thick vegetation; in some of the photographs Walsh's residence is not even visible, and in others only a small portion of Walsh's roof is visible. [Note 22] Walsh offered concerns, but no facts, to counter this evidence.

Walsh also argues that he will be harmed by light emanating from the Proposed Dwelling, both interior and exterior. Of the concern related to interior lighting, he worries that he will be able to see light at night when lights inside the Proposed Dwelling are lit. [Note 23] This is not an interest that the Bylaw protects. As to the exterior lighting, Walsh speculates that "[t]he Town's construction drawings call for spotlights which will shine directly on my home. In my opinion that will create light problems, will further reduce my privacy, will reduce my enjoyment and use of my home and property, and will further decrease the monetary value of my property." [Note 24] Contrary to Walsh's speculation, the defendants submitted evidence that of the three exterior light fixtures for the Proposed Dwelling, only one, a fixture at the rear of the Proposed Dwelling that will illuminate the back yard of the Property, will cast light that may only be partially visible from Walsh's property. [Note 25] Dadoly avers that no light fixture will point directly at Walsh's property, and any light from the fixture at the rear of the Proposed Dwelling will be screened by the vegetated buffer. Additionally, the special permit approval requires "[f]ull cut-off lighting." [Note 26] Walsh offered no actual facts to counter this evidence.

Lastly, Walsh testified at his deposition that, "[i]f my wife and I want to have coffee and read, we'd have utterly, utter silence" and he believes he will lose that silence if the Proposed Dwelling is constructed, because residents at the Proposed Dwelling will increase the noise level. [Note 27] First, the defendants counter that Walsh's property is located 120 feet from Route 134, so it is unreasonable to expect that he presently enjoys total silence or only hears birds chirping on his property. Second, Walsh must show "more than minimal or slightly appreciable harm" and not simply that he will be impacted by the Proposed Dwelling. See Kenner v. Zoning Bd. of Appeals of Chatham, supra, 459 Mass. at 121-122. Hearing a neighbor play catch is not a harm that confers standing on Walsh. [Note 28]

Accordingly, Walsh does not have standing to challenge the special permit on the basis of loss of privacy tethered to overcrowding and undue concentration of population, as those harms are not interests that § 4.9.2.4 is intended to protect, and to the extent those interests are protected by the Bylaw, the defendants rebutted the presumption. Walsh has not provided any direct evidence, beyond mere speculation, to overcome the defendants' "evidence to warrant a finding contrary to the presumed fact" that he will suffer harm. 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 701.

Drainage.

Walsh argues that the Project creates a risk of flooding to his property because surface water on the Property will drain onto his property. Section 1.2 of the Bylaw seeks to provide inhabitants of the Town with safety from flooding and also seeks "to facilitate the adequate provision of . . . drainage."

The defendants first argue that Walsh's drainage concern is not an interest protected by § 4.9.2.4, because that section does not require a stormwater drainage analysis for the Project. Nonetheless, the defendants produced evidence establishing that Walsh's property will not be harmed by drainage.

The defendants cite the Town's stormwater management bylaw, which is separate and apart from the Bylaw, as well as independent stormwater management rules and regulations, and assert that under the relevant regulations the Project is required to control stormwater for 10-year storm events. [Note 29] They submitted the affidavit of Robert Perry, a licensed professional engineer, who provided the Town with stormwater drainage services related to the Project. After measuring the topography of the Property and reviewing soil testing results to evaluate the drainage characteristics, Perry provided the Town with recommendations to ensure that post-construction runoff will be controlled for ten-year storm events. [Note 30] Perry further recommended that the Town control for greater capacity storms, including twenty-five-year storm events. He averred that the Town will follow his recommendations and his affidavit enumerates the steps that the Town will take. [Note 31] Perry opines that the Project, incorporating all of his recommendations, will satisfy the Town's stormwater bylaw and regulations, and that Walsh's property will not suffer any adverse effects from runoff, including during ten-year and twenty-five-year storm events. The defendants also submitted the affidavit of Chris Lambton, who designed the landscaping for the Property, and averred that, consistent with the Town's stormwater management plan, plantings at the edge of the Property where it abuts Walsh's property will be placed on a berm of soil "that will further reduce any storm water leaving the Town's property." [Note 32]

In further support of their position, the defendants point to Walsh's inability to show that he will suffer injury in the form of drainage problems if the Project is constructed. See Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 35-35 ("The developer was not required to support its motion for summary judgment with affidavits on each of the plaintiffs' claimed sources of standing; its reliance on the plaintiffs' lack of evidence as to the other claims, obtained through discovery, had equal force"). The record reflects that Walsh's claimed aggrievement based on the risk of surface water flooding his property is merely speculative. [Note 33] At his deposition, Walsh expressed a concern about water occasionally pooling in the front right corner of his basement, an area of his home that fronts on Prince Street. When asked where the water comes from, Walsh indicated that he does not know where the water comes from, but he thinks it comes from behind his home because, "[w]ater, I think runs downhill, doesn't it?" He further testified that the water pools two to three times per year after a lengthy period of heavy rain, but could not explain why the back of his basement, to the rear of his property, remains dry. Walsh also does not know if he experiences drainage problems from other surrounding properties that would lead to water in the front corner of his basement. The affidavit Walsh submitted of real estate appraiser Stephen DeCastro is also unavailing. DeCastro merely opines, "[w]ithout [] pre- and post-construction surface water drainage calculations it is impossible to determine the precise degree of damage which will result to the Walsh property as a direct result of drainage runoff. However, it is my opinion that there will be damage." [Note 34] This averment is conclusory and not based on any credible evidence. See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 723 n.5 (conclusory statements not based in fact "just the type of 'uncorroborated speculations' sought to be avoided by the standing requirements of G. L. c. 40A, § 17"). [Note 35] Furthermore, neither Walsh nor DeCastro claimed or demonstrated any expertise that would qualify either of them to offer an expert opinion on matters related to drainage.

Thus, even if § 4.9.2.4 does not supersede § 1.2 of the Bylaw, as Walsh contends, thereby making drainage concerns a protected interest that could provide a basis for standing, the defendants have rebutted Walsh's presumption of standing. In return, Walsh was required to supply credible evidence that he would be harmed by drainage from the Property and has failed to do so. As such, he does not have standing to challenge the special permit based on drainage concerns.

The defendants have successfully rebutted Walsh's presumption of standing, by demonstrating that the interests he claims will be harmed are not protected by the Bylaw, by presenting credible evidence that he will not be harmed by the proposed development, and by demonstrating that Walsh's lacks any credible evidence to substantiate his allegations of harm. Walsh has in turn failed to present any credible evidence to substantiate his claimed harms with respect to any interest protected by the Bylaw. Accordingly, the court need not address the merits of Walsh's claim that the Board exceeded its authority in granting the special permit.

CONCLUSION

For the reasons stated above, the defendants' motion for summary judgment is ALLOWED, and Walsh's cross-motion for summary judgment is DENIED.

Judgment will enter in accordance with this Decision.