ANDREW N. ZUK, Personal Representative of the Estate of Norman C. Zuk, v. ROBERT A. PAIRSEAU, ROBERT CIGNETTI, REBECCA KILBORN, JOHN BOUGHNER, and JEFFREY SAUER, as they are members of the TOWN OF DANVERS BOARD OF APPEALS, and BRENTWOOD PROPERTY, LLC.

Andrew N. Zuk, as personal representative of his father's estate, continues his father's challenge to a decision of the Town of Danvers Board of Appeals approving Brentwood Property, LLC's request for modification of its site plan of its nursing home that abuts Zuk's property. The parties have filed cross-motions for summary judgment. Notwithstanding Zuk's status as an abutter, he has utterly failed to articulate any harm from the decision that could be cognizable under G.L. c. 40A or the Town of Danvers Zoning Bylaws (bylaw). His presumption of standing has been rebutted, and the Defendants have shown that he has no reasonable expectation of proving any injury. Even if Zuk had standing to bring this appeal, based on the undisputed facts, the Board of Appeals (Board) reasonably interpreted its own bylaw in reaching its decision. The decision will be affirmed and Zuk's complaint dismissed with prejudice.

Procedural History

Norman C. Zuk and Gregory K. Zuk filed their Complaint pursuant to G.L. c. 40A, § 17, on December 23, 2016. On January 23, 2017, an Affidavit of Notice of Peter M. Zuk, Esq. and an Amended Complaint was filed naming Brentwood as a defendant along with the Board. A case management conference was held on February 6, 2017, where the court ordered Plaintiffs to file another amended complaint. A Second Amended Complaint was filed on February 15, 2017.

Defendants' Motion to Dismiss was filed on March 9, 2017. Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss was filed on April 3, 2017. Defendants' Reply to Opposition to Motion to Dismiss was filed on April 26, 2017. The court heard argument on the Motion to Dismiss on April 26, 2017. Defendants' Supplemental Reply, Plaintiff's Additional Memorandum of Law in Opposition to Defendants' Motion to Dismiss, and Andrew N. Zuk's Motion for Order to Substitute Party Pursuant to Rule 25(a)(1) Mass. R. Civ. P., were filed on May 5, 2017. On June 9, 2017, the court denied the motion to dismiss and allowed the motion to substitute Andrew N. Zuk, Personal representative of the Estate of Norman C. Zuk for plaintiffs Norman C. Zuk and Gregory K. Zuk.

Brentwood Property, LLC's Answer to Plaintiff's Second Amended Complaint was filed on June 26, 2017. On October 17, 2017, the defendants Brentwood Property, LLC and the Members of the Town of Danvers Board of Appeals filed their Motion for Summary Judgment, Memorandum in Support of Motion for Summary Judgment, Appendix (Defs.' App.), and Facts in Support of Motion for Summary Judgment (Defs.' SOF). On October 19, 2017, the Plaintiff filed his Motion for Summary Judgment Pursuant to Rule 56, Mass. R. Civ. P., Statement of Material Facts upon which the Plaintiff Relies in Support of his Motion for Summary Judgment (Pl.'s SOF), Appendix (Pl.'s App.), and Brief in Support of Motion for Summary Judgment. On November 15, 2017, Defendants Brentwood Property, LLC and the Town of Danvers Board of Appeals Response to Plaintiff's Statement of Material Facts (Defs.' Resp. to Pl.'s SOF), Defendants' Statement of Additional Facts (Defs.' SOAF), Opposition to Plaintiff's Motion for Summary Judgment, and Supplemental Appendix (Defs.' Supp. App.) were filed. On November 27, 2017, the Plaintiff's Response to Defendants' Statement of Material Facts in Support of their Motion for Summary Judgment (Pl.'s Resp. to Defs.' SOF), Supplemental Appendix (Pl.'s Supp. App.), Affidavit of Andrew N. Zuk (Zuk Aff.), and Memorandum in Opposition to Defendants' Motion for Summary Judgment were filed. On December 1, 2017, the Defendants' Reply Memorandum to Plaintiff's Opposition to Defendants' Motion for Summary Judgment, Statement of Material Facts in Support of Summary Judgment, and Motion to Strike Affidavit of Andrew N. Zuk were filed. The Plaintiff filed his Reply Brief in Support of Motion for Summary Judgment and Affidavit of Peter M. Zuk on December 6, 2017. On December 8, 2017, the court heard the motion to strike and the cross-motions for summary judgment, took a copy of the bylaw into the record, and took the motions under advisement. This Memorandum and Order follows.

Motion to Strike

The Defendants move to strike the affidavit of Andrew Zuk on the grounds that Zuk lacks personal knowledge of the facts contained therein and further that the affidavit contains inadmissible hearsay. As personal representative to the estate of Norman C. Zuk, and not in his individual capacity, Zuk may adopt the position taken by his father and former plaintiff in this

action. Further, nothing contained within the Zuk Affidavit is dispositive as to any issue now before the court. The Motion to Strike the Affidavit of Andrew Zuk is DENIED.

Summary Judgment Standard

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The following facts are undisputed:

1. Plaintiff Andrew N. Zuk (Zuk) is the sole owner of the property at 77 Elliot Street, Danvers Massachusetts (Zuk property), as personal representative of the estate of Norman C. Zuk. Defs.' SOF ¶ 1; Pl.'s Resp. to Defs.' SOF ¶1.

2. Norman C. Zuk, the record owner of the Zuk property, passed away on January 13, 2017, and Andrew N. Zuk was appointed the personal representative of Norman C. Zuk's estate on April 24, 2017. Defs.' SOF ¶¶ 2, 3, 5; Pl.'s Resp. to Defs.' SOF ¶¶ 2, 3, 5.

3. Brentwood, a Delaware limited liability company, owns the property located at 56 Liberty Street, Danvers, Massachusetts (Brentwood property), on which it operates a residential facility known as the Brentwood Rehabilitation and Healthcare Center (facility). Defs.' SOF ¶¶ 6-8; Pl.'s Resp. to Defs.' SOF ¶¶ 6-8.

4. The Zuk property abuts the Brentwood property. Defs.' App. Exh. 16, 25:24-26:3.

5. The Brentwood property is located in a Residence II (R-II) zoning district. Pl.'s SOF ¶ 4; Defs.' Resp. to Pl.'s SOF ¶ 4.

6. The facility was constructed pursuant to a building permit issued on November 4, 1970. At that time there were no parking requirements for nursing homes in the bylaw. Defs.' SOF ¶¶ 10-11; Pl.'s Resp. to Defs.' SOF ¶¶ 10-11.

7. By decision dated March 28, 1988 (1988 Decision), the Board granted a special permit to alter the existing nursing home and approved a plan for the facility which showed 56 parking spaces (the 1988 Plan). Defs.' SOF ¶ 12; Pl.'s Resp. to Defs.' SOF ¶ 12; Defs.' App. Exh. 8.

8. Brentwood acquired the Brentwood property and the facility in 2013. Defs.' SOF ¶ 13; Pl.'s Resp. to Defs.' SOF ¶ 13.

9. On July 20, 2016, Brentwood filed an application with the Board seeking to amend the 1988 Plan to allow for reconfiguring of the pavement to accommodate additional parking. Defs.' SOF ¶ 15; Pl.'s Resp. to Defs.' SOF ¶ 15.

10. On November 28, 2016, the Board issued a decision (2016 Decision) amending the 1988 special permit and approving a modified plan (Amended Plan) showing 84 parking spaces. Defs.' SOF ¶ 16; Pl.'s Resp. to Defs.' SOF ¶ 16.

11. Zuk was deposed on June 29, 2017, Defs.' SOF ¶ 27; Pl.'s Resp. to Defs.' SOF ¶ 27, and testified to the following:

a. That he had not reviewed or seen the Second Amended Complaint prior to his deposition, Defs.' App. Exh. 16, 12:21-13:1;

b. That his general understanding of the case was that his father did not approve of the Amended Plan as it affected the Zuk property, Defs.' App. Exh. 16, 13:8-17;

c. The he had never reviewed the Amended Plan and did not know specifically why the plan was unacceptable, Defs.' App. Exh. 16, 13:19-21;

d. That he had never reviewed the 1988 Decision or the 2016 Decision, Defs.' App. Exh. 16, 16:6-13;

e. That at the time of his deposition he was unable to articulate how he is aggrieved by the 2016 Decision and could not at that time explain which portions of the 2016 Decision would impact him, Defs.' App. Exh. 16, 17:14-18:4; and

f. That he had no specific knowledge of how the changes to the parking on the Brentwood property allowed by the 2016 Decision would impact him or the Zuk property, Defs.' App. Exh 16, 21:24-22:-3.

12. In his answers to Defendants' interrogatories Zuk averred:

a. That the 2016 Decision and the Amended Plan alter features and conditions of the 1988 Plan and 1988 Decision in a way which increases the impact on the Zuk property and its occupants, Defs.' App. Exh. 15, ¶ 6;

b. That he is aggrieved by the Board not requiring site plan review in connection with the 2016 Decision, Defs.' App. Exh. 15, ¶ 6; and

c. That an increase impervious surface on the Brentwood property can be inferred from a comparison of the 1988 Plan and the Amended Plan, Defs.' App. Exh. 15, ¶ 7.

13. Section 40.2 of the bylaw includes the following definitions:

Health Care facility: A facility or institution, whether public or private, principally engaged in providing services for health maintenance, diagnosis or treatment of human disease, pain, injury, deformity or physical condition, such as a general hospital, special hospital, mental hospital, public health center, diagnostic center, treatment center, extended care facility, skilled nursing home, nursing home, intermediate care facility, physical therapy, tuberculosis hospital, chronic disease hospital, maternity hospital, out-patient clinic, dispensary and home health care agency. Excluded are health clubs, gymnasiums, exercise clubs, diet centers and other similar facilities as a principal use.

Nursing Home: see Specialized Elderly Residence & Care

Specialized Elderly Residence and Care: A facility whose primary purpose is for elder residences and/or elder care facilities; referring to the range of residential and healthcare provided to elderly populations, provided that at least one occupant of each dwelling unit shall have reached the age of 62 and all other occupants of said dwelling shall have reached the age of 55. This facility may include the following: …

Nursing Home: Any place or institution for the aged, infirmed, chronic or convalescent, whether conducted for charity or profit, which is established to render domiciliary care, treatment or lodging for three (3) or more unrelated persons who require or receive assistance in ordinary daily activities of life or who are confined to a bed or chair. (This term includes boarding or rooming houses for aged people, convalescence homes, rest homes, homes for the aged and infirmed or convalescence homes for children, but does not include hospitals, clinics and similar institution devoted primarily to the diagnosis and treatment of disease, injury, maternity cases or mental illness.)

Bylaw § 40.2.

14. The bylaw's Table of Allowable Uses for a R-II zoning district allows non-profit nursing homes by right, for-profit nursing homes by special permit, and does not allow health care facilities. Bylaw Table 1.

15. Section 4.2(1) of the bylaw provides, in relevant part, that:

[A]ny change in use, other than a single family or two-family, whether from one use category to another, said use categories being as listed in this Bylaw, or to a use which has an increased requirement for parking as defined by this Bylaw, or an increase in impervious surface, other than building footprint shall be subject to Site Plan Approval.

Bylaw § 4.2(1).

16. Section 4.3(8) of the bylaw provides that "[a]ll modifications to a previously approved site plan require review and approval." Bylaw § 4.3(8).

17. Site Plan Review was not required for the Brentwood property in 1988 and there is no existing site plan for the Brentwood property. Defs.' SOAF ¶ 23; Defs.' Supp. App. Exh 1, ¶11.

Discussion

The Defendants challenge Zuk's standing, arguing that he is not aggrieved by the 2016 Decision. Zuk argues that he is aggrieved by the 2016 Decision and further aggrieved by procedural errors or omissions in the Board's hearing held in connection with the 2016 Decision. On the merits of his case Zuk challenges the validity of 2016 Decision on the grounds that the bylaw required site plan review in order to modify the special permit granted in 1988. The Defendants take the position that site plan review was not required to modify the special permit.

1. Standing

The Defendants challenge Zuk's standing to maintain this G.L. c. 40A, § 17 zoning appeal. In order to have standing to challenge the Boards modification to Brentwood's special permit, Zuk must be a "person aggrieved" by the Decision. G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 702-703 (1998). Persons entitled to notice under G.L. c. 40A, § 11, including abutters to the subject property and abutters to abutters within 300 feet of the subject property, are entitled to a rebuttable presumption that they are aggrieved within the meaning of § 17. G.L. c. 40A, § 11. 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass. App. Ct. 376 , 381 (2006). Zuk is a direct abutter to 56 Liberty Street and is therefore entitled to the rebuttable presumption of aggrievement.

In the zoning context, a defendant can rebut an abutter's presumption of standing at summary judgment in three ways. First, the defendant can show "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." 81 Spooner Road, LLC, 461 Mass. at 702, citing Kenner, 459 Mass. at 120. Second, "where an abutter has alleged harm to an interest protected by the zoning laws, a defendant can rebut the presumption of standing by coming forward with credible affirmative evidence that refutes the presumption." Id. at 703. "[T]he defendant may present affidavits of experts establishing that an abutter's allegations of harm are unfounded or de minimis." Id. at 702, citing Kenner, 459 Mass at 119–120, and Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 23–24 (2006). Third, a defendant need not present affirmative evidence that refutes a plaintiff's basis for standing; "it is enough that the moving party demonstrate by reference to material described in Mass. R. Civ. P. 56(c), [ 365 Mass. 824 (1974),] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving a legally cognizable injury." Id. at 703, quoting Standerwick, 447 Mass. at 35; see Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). "Once the presumption of standing has been rebutted successfully, the plaintiff [has] the burden of presenting credible evidence to substantiate the allegations of aggrievement, thereby creating a genuine issue of material fact whether the plaintiff has standing and rendering summary judgment inappropriate." 81 Spooner Road, LLC, 461 Mass. at 703 n.15, citing Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 519–521 (2011).

The Defendants have rebutted Zuk's presumption of standing by showing that he has no reasonable expectation of proving a legally cognizable injury. 81 Spooner Road, LLC, 461 Mass. at 703. In answers to interrogatories, deposition testimony, and his own affidavit, Zuk was unable to articulate a harm that would give rise to a legally cognizable injury flowing from the 2016 Decision. Further, the Defendants' showed, through Zuk's deposition, that Zuk could not identify his reasons for aggrievement, had not previously seen the Second Amended Complaint in this action, the 2016 Decision, or the Amended Plan, and could not identify how the 2016 Decision would impact his property. The present situation is unlike that in 81 Spooner Road where the court found that "[a]lthough not versed in the terminology of zoning law, the Foggs' testimony clearly indicates that one of their allegations was that construction of the house…violated the density provisions of the zoning bylaw." Id. at 704. Here, Zuk has not articulated anything that could be interpreted as a harm to an interest protected by G.L. c. 40A or the bylaw. In his answers to interrogatories—which he attempts to bolster by submitting an affidavit in which he adopts Norman Zuk's statements of aggrievement [Note 1]—Zuk claims aggrievement on the grounds that the 2016 Decision increases the impact of the facility on the Zuk property and its inhabitants, with no more specificity. This does not go far enough to allege a harm to a legally protected interest. The Defendants, in preparation for summary judgment, have pursued every avenue available to them in their attempt to discern what harms Zuk claims he will suffer as a result of the 2016 Decision. Where in response to the Defendants' interrogatories and deposition questions, Zuk could not provide information supporting any articulable harm, the presumption of standing is rebutted.

With the presumption of standing rebutted, Zuk has the burden of substantiating his allegations of aggrievement. The record before the court does not provide any evidence which would tend to support Zuk's nebulous claims of aggrievement. As such, Zuk does not have standing to challenge the 2016 Decision and the Defendants are entitled to summary judgment. To the extent that Zuk has alleged that purported procedural errors of the board violate due process rights contained within the bylaw, G.L. c. 40A, and the Constitution of the United States, Zuk's failure to articulate any appreciable harm resulting from the Board's actions resolves means that he lacks an injury in fact and therefore does not have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-562 (1992).

2. Zoning Appeal

Notwithstanding Zuk's lack of standing, the court turns to the merits of the appeal of the 2016 Decision. An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17 the "court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require." G.L. c. 40A, § 17. Section 17 review of a local board's decision involves a "'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) ("In exercising its power of review, the court must find the facts de novo and give no weight to those the board has found."); Kitras v. Aquinnah Plan Review Comm., 21 LCR 565 , 570 (2013) (noting the court must "review the factual record without deference to the board's findings").

After finding the facts de novo, the court's "function on appeal" is "to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purpose of the zoning law." Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court, however, must give deference to the local board's decision and may only overturn a decision if it is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570.

Zuk challenges the 2016 Decision on the grounds that prior to its issuance Brentwood was required to obtain Site Plan Approval from the Board. Zuk argues that Site Plan Approval was required because (1) there has been a change in use on the Brentwood property, (2) the Amended Plan results in an increase in impervious surface, and (3) the 2016 Decision modifies a previously approved site plan. Zuk relies on § 4.2(1) of the bylaw which provides, in relevant part, that:

[A] ny change in use, other than a single family or two-family, whether from one use category to another, said use categories being as listed in this Bylaw, or to a use which has an increased requirement for parking as defined by this Bylaw, or an increase in impervious surface, other than building footprint shall be subject to Site Plan Approval.

Bylaw § 4.2(1). Further, § 4.3(8) provides that "[a]ll modifications to a previously approved site plan require review and approval." Bylaw § 4.3(8). Contrary to Zuk's argument there is no previously approved site plan for the Brentwood property and therefore site plan review is not implicated by §4.3(8). Zuk is correct that an increase in the amount of impermeable surface would trigger the Site Plan Approval requirement of § 4.2(1). The Defendants' evidence, however, shows that the Amended Plan would actually decrease the amount of impermeable surface by two square feet. Zuk has provided no evidence that the Amended Plan results in an increase to impervious area or that otherwise creates a dispute of fact on this issue.

Zuk argues that an increase in the number of skilled nursing home beds at the facility is a change in use that triggers the Site Plan Approval requirement. Zuk's argument rests on the idea that the presence of skilled nursing home beds takes the facility out of the nursing home use classification and makes it a health care facility which is not permitted in an R-II zoning district. Zuk's argument is grounded in the fact that the definition of health care facility includes skilled nursing homes as one of several facilities that could be examples of a health care facility. Zuk seems to have overlooked that nursing homes are also included in the same list of examples and are also defined within the broader definition of specialized elderly residence and care. While health care facilities are not allowed in an R-II district, non-profit nursing homes are allowed by right and for-profit nursing homes are expressly allowed by special permit in the zoning district as subcategories of specialized elderly residence and care. This suggests that the bylaw intends that a nursing home is an allowed use, notwithstanding that they may in other circumstances be considered a health care facility. In any event, notwithstanding that either a nursing home or a skilled nursing home may be a health care facility, the Board could reasonably conclude that the facility is a nursing home within the definition of specialized elderly residence and care. The facility has been operated as a nursing home since 1970 and subject to a special permit as a nursing home since 1988.

"A judge must give 'substantial deference' to a board's interpretation of its zoning bylaws and ordinances." Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381, quoting Manning v. Boston Redevelopment Auth., 400 Mass. 444 , 453 (1987). Such "deference is owed to a local zoning board's home grown knowledge about the history and purpose of its town's zoning by-law." Duteau v. Zoning Bd. of Appeals of Worcester, 47 Mass. App. Ct. 664 , 669 (1999). It is not now the court's role to disturb the wisdom of the Board. Based on the record before the court there is nothing about the Board's treatment of the facility as a nursing home rather than a health care facility that is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. The Board's interpretation of the bylaw is entirely within the discretion afforded to it by the construction of the defined uses at issue here. Site Plan Approval was not required and the 2016 Decision is entitled to affirmation on its merits.

Conclusion

For the foregoing reasons, the Plaintiff's Motion for Summary Judgment is DENIED and the Defendants' Motion for Summary Judgment is ALLOWED. Judgment shall enter affirming the 2016 Decision and dismissing the Complaint with prejudice.

SO ORDERED