In these consolidated cases, plaintiffs Carol Murphy Edberg, Cynthia Allyn, Bradley Cohen, and Stanley Belastock, who are Trustees of the Winchester House Condominium Trust ("Winchester House Plaintiffs"), Donald Sherak, Charles Swartz, Thomas Gutheil, Shannon Tommie Woolley, the remaining plaintiffs (others having joined in the original complaint but since having dismissed their claims) ("Neighbor Plaintiffs") (collectively, "Plaintiffs") seek to overturn a decision of the Brookline Zoning Board of Appeals ("Board"), whose members are defendants, to grant a comprehensive permit pursuant to G.L. c. 40B to Roth Family, LLC and 40 Centre Street, LLC ("Private Defendants") for a 40-unit mixed income apartment building ("Project"). The Board issued its decision on February 8, 2017, and Plaintiffs timely appealed pursuant to G.L. c. 40A, § 17 and G.L. c. 40B, § 21 by filing complaints in this court. The Winchester House Plaintiffs filed a complaint on February 27, 2017 and the Neighbor Plaintiffs filed a complaint on February 28, 2017. The two cases were consolidated on March 31, 2017. Private Defendants filed a motion for summary judgment pursuant to Mass. R. Civ. P. 56 on the Plaintiff's standing.
After hearing the arguments of counsel, and reviewing the briefs in support of and in opposition to the motion, and based upon the summary judgment record properly before the court, and granting all inferences in favor of each of the nonmoving parties, as the court must pursuant to Mass. R. Civ. P. 56, the court GRANTS IN PART the Private Defendants' motion for summary judgment, and DENIES IN
PART the motion for summary judgment.
Standard of Review
Judgment may be entered on a motion for summary judgment 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). The moving party bears the burden of showing, by credible evidence, that there are no triable issues of fact. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c). The court then views the evidence "in the light most favorable to the nonmoving party." Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012).
In deciding motions for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Mass. R. Civ. P. 56 (c). The court may also consider admissions by counsel during oral argument of a motion. White v. Peabody Construction Co., 386 Mass. 121 , 126 (1982). Affidavits must "be made on personal knowledge, . . . set forth such facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein." Mass. R. Civ. P. 56 (e).
Standing
Under G.L. c. 40B, § 21, upon the issuance of a comprehensive permit, any "person aggrieved" may appeal to the courts as provided in G.L. c. 40A, § 17. Only "persons aggrieved" have standing to appeal a zoning board of appeals decision. See Green v. Board of Appeals of Provincetown, 404 Mass. 571 , 572 (1989). A plaintiff is considered "aggrieved" if a board's action will, or likely will, infringe on some legal or property right. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Courts are not to construe narrowly the term "person aggrieved." Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957).
These appeals, of course, lie from comprehensive permit decisions under G.L. c. 40B. Much of the analytical framework the decisional law has developed for the consideration of a plaintiff's aggrievement under appeals pursuant to G.L. c. 40A, §17 from land use decisions not involving comprehensive permits apply to appeals from comprehensive permits as well. The Supreme Judicial Court has explained this in a number of its decisions, including in Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 (2006). The plaintiffs in Standerwick, like the plaintiffs here, sued pursuant to G.L. c. 40B, §21, from a decision to grant a comprehensive permit. As the Standerwick court instructed, 447 Mass. at 27, decisions of the Supreme Judicial Court make clear that there is considerable overlap in a court's analysis of standing in comprehensive permit judicial appeals and in those arising under the conventional zoning law scheme. Courts, for the purposes of interpreting the term "person aggrieved" under the comprehensive permit statute look to the interpretation of the identical term in G.L. c. 40A, §17. "Specifically, a 'person aggrieved' as that term is used in both statutes must assert 'a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.'" Id. (citations omitted). "Of particular importance, the right or interest must be one that the statute under which a plaintiff claims aggrievement intends to protect." 447 Mass. at 27-28.
While the method of analysis, and the required approach for addressing the presumptions a party may enjoy as a plaintiff who is a party in interest, is essentially the same in both varieties of judicial appeals--what is distinct between them is that the "...interests protected by G.L. c. 40B differ from, and in some respects are inconsistent with, those protected by G.L. c. 40A." Id., at 28. The Standerwick court thus had, for example, "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. It is also inconsistent with our long- standing jurisprudence 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. ..." 447 Mass. at 30.
With this vital distinction in mind, the court proceeds to analyze the standing of the plaintiffs consistently with the instruction provided in appellate decisions arising under both G.L. c. 40A and c. 40B. Abutters, as parties in interest entitled to notice of the Board's hearings, are presumed to be persons aggrieved. Marashlian, 421 Mass. at 721. A defendant can rebut an abutter's presumption of standing at summary judgment in two ways. First, and perhaps most easily, 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, v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 702 (2012). Therefore, if a plaintiff's aggrievement is based on an interest that the zoning law does not protectand a defendant adequately establishes thata plaintiff's presumption of standing has been rebutted.
Second, a plaintiff's presumption of standing will be rebutted if a defendant offers evidence to the contrary. Standerwick, 447 Mass. 20 , 34 (2006). In the summary judgment context, a defendant need not support a motion for summary judgment with affidavits, if, through discovery, a defendant can prove a plaintiff has no factual basis or meaningful evidence for his or her claims. Id. at 3536 ("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."); see also 81 Spooner Road, LLC, 461 Mass. at 70304 ("[W]here a plaintiff acknowledges during discovery a lack of substantive evidence to establish a legally cognizable injury, a defendant may rely on those admissions to rebut the plaintiff's presumption of standing, rather than presenting independent evidence that would warrant a finding of no aggrievement.").
When, however, an abutter has alleged a harm that is both protected by the zoning bylaws and grounded in factual basis, a defendant may offer independent evidence in the form of expert affidavits contrary to the presumed aggrievement, which, if credited, would demonstrate that a plaintiff's aggrievement is unfounded or de minimis. 81 Spooner Road, LLC, 461 Mass. at 702 (citing Kenner v. Zoning Board of Appeals of Chatham, 459 Mass. 115 , 119120 (2011), and Standerwick, 447 Mass. at 2324). Such evidence successfully rebuts a plaintiff's presumption of standing.
Once rebutted, the presumption "recedes." Tsagronis v. Board of Appeals of Wareham, 33 Mass. App. Ct. 55 , 58 (1992). No longer afforded any advantage of presumption, a plaintiff then must prove standing by introducing credible evidence of an injury special and different from the concerns of the rest of the community. Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81 , 8889 (2007), quoting
Standerwick, 447 Mass. at 27 ("Once the presumption is rebutted, the burden rests with the plaintiff to prove standing, requires that the plaintiff establishby direct facts and not by speculative personal opinionthat his injury is special and different from the concerns of the rest of the community") (internal quotations omitted). The nature of such credible evidence must be both quantitative and qualitative. Butler v. Waltham, 63 Mass. App. Ct. 435 , 44142 (2005). To be quantitative, the evidence "must provide specific factual support for each of the claims of particularized injury the plaintiff has made." Id. To be qualitative, the evidence must be "a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Id. "Conjecture, personal opinion, and hypothesis" are not enough for a plaintiff to establish standing. Id.
Here, the Private Defendants challenge Plaintiffs' standing on several categories of issues: (1) parking and traffic, (2) stormwater management, (3) waste and recycling management, (4) public fire safety, (5) noise levels, (6) trees, and (7) design and density, including increased shadows. These challenges to the presumption of standing are based on the Plaintiffs' pleadings and answers to interrogatories. Notably, the Private Defendants' motion for summary judgment relies solely on the Plaintiffs' pleadings and answers to interrogatories as their source of aggrievement. The Private Defendants did not conduct depositions to probe the Plaintiffs' factual bases for any of their claimed harmsunlike the defendants in Standerwick, who showed, through deposition testimony that the plaintiffs merely were relying on "gut feel" and "personal experience" as grounds for aggrievement. Standerwick, 447 Mass. at 23, n. 7. See also 81 Spooner Road, LLC, 461 Mass. at 70304 ("[W]here a plaintiff acknowledges during discovery a lack of substantive evidence to establish a legally cognizable injury, a defendant may rely on those admissions to rebut the plaintiff's presumption of standing, rather than presenting independent evidence that would warrant a finding of no aggrievement."). Nor did the Private Defendants file any motions to compel answers when the Neighbor Plaintiffs failed to respond to any interrogatory requests.
In response, the Winchester House Plaintiffs first argue that the presumption has not been rebutted, and, in the alternative, that their standing is based on the Project's purported increased noise, loss of trees, and increased shadows over their property. The Neighbor Plaintiffs respond, basing their standing only on the increased shadows over their property that these Neighbor Plaintiffs say will occur as a result of the Project.
Of the identified categories of grounds of potential aggrievement, the court finds that the Private Defendants have successfully rebutted the presumption of standing on some, but not all, issues. Although a plaintiff generally need only demonstrate aggrievement on one issue to prove standing and try the case on the merits as to any and all proper issues, the court addresses in turn each issue raised by the parties here, to aid and encourage the parties in narrowing the issues to be tried.
1. Parking and Traffic Impacts
In their complaint and answer to interrogatories, the Winchester House Plaintiffs claim they will be harmed by the Project's parking and traffic impacts. The Winchester House Plaintiffs also express concern over pedestrian safety. The Private Defendants do not argue that as a matter of law, the claims of adverse parking, traffic, and sight-line impacts are not interests that the comprehensive permit statute is intended to protect.
The Private Defendants do, however, challenge the Winchester House Plaintiffs' presumed aggrievement on this issue and argue that the Winchester House Plaintiffs' claims as to parking and traffic impacts are unfounded. To rebut the Plaintiffs' presumption of standing, the Private Defendants offer evidence from four traffic and parking experts. These reports, memoranda and letters include: (1) a memorandum to Robert Roth, Roth Family, LLC, from Daniel J. Mills, MDM Transportation Consultants, dated October 14, 2016 (Ex. 2); (2) a memorandum to Robert Roth, Roth Family, LLC, from F. Giles Ham, dated April 15, 2016 (Ex. 3); (3) a memorandum to Alison C. Steinfeld, Department of Planning and Community Development, from James Fitzgerald, dated October 26, 2016 (Ex. 4); (4) a memorandum to James Fitzgerald from Arthur Stadig, WPC, dated November 21, 2016 (Ex. 6); (5) a letter from the Town of Brookline Planning Board, dated June 3, 2016 (Ex. 7); and (6) a letter to Robert Roth, Roth Family, LLC, from F. Giles Ham, dated August 22, 2016. While the evidence offered appears to be credible and might otherwise demonstrate that the Winchester House Plaintiffs claims are unfounded or de minimis, the Private Defendants do not submit any accompanying affidavits to "set forth such facts as would be admissible in evidence" as required under Mass. R. Civ. P. 55 (e) or any other similar material. Without an accompanying affidavit, the court cannot know the threshold admissibility of this evidence, and whether each purported expert "is competent to testify to the matters stated therein." Mass. R. Civ. P. 55 (e). The memoranda, letters, and reports offered by the Private Defendantsthe dates of which span from April 2016 through October 2016appear to have been prepared for the Board's consideration of the Project's application, but are unverified as to their truthfulness or personal knowledge. Therefore, the Private Defendants fail to rebut successfully the Plaintiffs' presumption of standing.
In addition to their lack of expert affidavits, the Private Defendants put forth two other legal theories which fail to rebut the presumption. First, the Private Defendants argue that Condition 12(a-d) of the Decision rebuts the Winchester House Plaintiffs' presumption of standing. Condition 12(a-d) set up traffic mitigation conditions to ensure pedestrian safety. (Ex. 1). The court finds this look-back condition too weak to rebut as to traffic and pedestrian safety issues Plaintiffs' presumption of standing. Second, the Private Defendants point to a November 15, 2016 change in Section 6.02.2 of the Brookline Zoning Bylaws, which reduces the parking requirement for the Project, as support of the Project's general consistency with Coolidge Corner's parking needs. This argument, however, is not the "evidence to the contrary" required by 81 Spooner Road or Standerwick.
As a result, the Private Defendants' efforts to challenge the Plaintiffs' standing as to traffic and parking concerns fail and Plaintiffs' presumption of standing remains intact.
2. Stormwater Management
In their complaint and answer to interrogatories, the Winchester House Plaintiffs claim they will be harmed by the inadequacy of the Project's stormwater management plan, including increased flooding onto the Winchester House Condominium's parking lot. Just as with parking and traffic concerns, the Private Defendants attempt to rebut the Winchester House Plaintiffs' presumption (as to this issue) with expert reports unaccompanied by affidavits or any otherwise appropriate foundational materials to show that the Plaintiffs' cliamed grounds of aggrievement as to harmful stormwater runoff are unfounded. The expert materials include: (1) a "Stormwater Management Narrative," by Bert E. Cory, Schofield Brothers, LLC, for 40 Centre Street, LLC dated November 10, 2016 (Ex. 9); (2) a memorandum reviewing the "Stormwater Management Narrative" by the Brookline Director of Engineering, dated December 5, 2016 (Ex. 10); and (3) a letter from Bert E. Cory summarizing a report by KMM Geotechnical Consultants LLC, dated July 18, 2017 (Ex. 11).
While the Private Defendants' expert materials suffer the same fate as those relating to parking and traffic because they are not accompanied with any affidavits, at oral argument, the Winchester House Plaintiffs admitted to the court that they were not basing their aggrievement on stormwater harms. The court accepts this admission to operate with equal, if not greater, weight as the type of deposition testimony which successfully may rebut a presumption of standing. The Winchester House Plaintiffs offer no evidence to provide factual support for their aggrievement in this area (given they are not contesting the Project on stormwater concerns); nothing appears unfair or inequitable about holding the Winchester House Plaintiffs to their undertaking, leaving the court to conclude that the case will proceed with it settled that the Winchester House Plaintiffs do not have standing relating to this issue.
3. Waste and Recycling Management Plan
In their complaint and answers to interrogatories, the Winchester House Plaintiffs claim that the waste and recycling management plans are inadequate to meet the needs of the Project, and that trash buildup will become a nuisance afflicting the Winchester House property and its residents. The Private Defendants attempt to rebut this position taken by Winchester House Plaintiffs with expert reports unaccompanied by affidavits or any otherwise appropriate foundational materials to show that the Plaintiffs' claimed aggrievement as to this point is unfounded or that the harm will be de minimis. The expert materials include: (1) an undated draft of a report titled "Narrative for the Trash Removal for 40 Centre Street, Brookline, MA," (Ex. 12); and (2) a memorandum from Brookline's Chief of Environmental Health Services, Patrick Maloney, dated November 21, 2016 (Ex. 13). Because these materials are offered without affidavit or any form of verified statement, they cannot constitute proper evidence and so serve to rebut the Plaintiffs' presumption of standing. The Plaintiffs therefore have standing based on waste and recycling concerns.
4. Public Fire Safety
In their complaint and answer to interrogatories, the Winchester House Plaintiffs allege that the Project poses a public safety concern due to deficiencies with the local fire department's access to the Proposed Building. The Private Defendants attempt to rebut the Winchester House Plaintiffs' claims in this regard with a letter from Deputy Chief Kyle McEachern, dated September 12, 2016 (Ex. 15), which explains how the Brookline Fire Department would respond in the event of a fire at the Proposed Building.
Once again, this letter is offered by itself, with no accompanying affidavit or other sworn testimony as required under Mass. Civ. P. R. 56 (e). Therefore, although the fire chief's letter, had it been submitted in proper evidentiary form, might otherwise show that Winchester House Plaintiffs' claims are unfounded or de minimis, these Plaintiffs' presumption of standing on this issue remains.
5. Noise
Protection against extreme noise may constitute a protected interest. The Town's General By-law prohibits a background noise level increase of 10 dBA and tonal noise increase of 5 dBA. Town of Brookline General By-law, Article 8.15. In their motion for summary judgment, the Private Defendants rely on the Winchester House Plaintiffs' answers to interrogatories and the complaint itself to identify the aggrievement put forward on this score. The Winchester House Plaintiffs particularly focus on noise which will emanate from the mechanical equipment to be installed on the upper level Proposed Building, which these Plaintiffs fear will transmit excessive noise and related vibration across the shared property line, materially disturbing the Winchester House residents and guests.
However, to rebut the Winchester House Plaintiffs' presumption as to this issue, the Private Defendants point to Condition 15 of the Board's Decision. This condition, the Private Defendants say, is sufficient proof that, at the end of the day, after the Project is complete, and before it achieves full actual occupancy, there will be a meaningful check to see if excessive noise actually will be a present, and, if so, to address it promptly with all necessary mechanical and equipment changes to stop the offending noise. Based on Condition 15, the Private Defendants contend that any aggrievement claimed by these Plaintiffs which rests on noise will be unfounded. Condition 15 of the Decision requires the project to comply with the Town Noise By-law at two stages: first, when fifty percent of the Certificates of Occupancy are issued, and second, before the final Certificate of Occupancy is issued. [Note 1]
Here, Condition 15 is sufficient to rebut the Winchester House Plaintiffs' presumption of standing as to noise. Where the condition placed on the Project is, as in the case of mechanical noise, one which can be measured firmly in an objective and quantifiable way, the Plaintiffs' can have no "reasonable expectation of proving a legally cognizable injury." At two different points during the building process, Condition 15 prohibits the issuance of final occupancy permits unless the noise limits of the bylaw are met. Although the Supreme Judicial Court in Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81 (2007) ruled that the issuance of a condition does not bar a plaintiff's standing, the underlying circumstances giving rise to the issuance of a condition are different here. In Jepson, after finding that flooding concerns are an interest protected under G.L. c. 40B, the Court found the plaintiff's claims plausible to confer standing because beaver dams had changed the surrounding land, making flooding more likely and harder to predict. Jepson, 450 Mass. at 91-2. In this case, Condition 15 protects the surrounding area, including especially the Project's neighbor to the rear, Winchester House, from having to live with any increase in noise from the Project that would violate state and local bylaws. The noise from the Project in general, and from the mechanicals used to operate the Project Building in particular, is capable of objective and accurate measurement. Unlike the impacts from flooding, where a whole range of factors, many ecological, can be difficult to quantify and measure with precision, the opposite is the case where excessive noise is the source of complaint. Indeed, on this factual questionwhether as designed the Project once up and running will produce noises in excess of the governing legal standardsthe prospects for certain measurement are considerably better after the building is up and becoming occupied, rather than being determined on a more theoretical basis by engineers forecasting how various factors will work to cause noise once the buildout is complete. The developers of the Project have, in effect, taken on squarely the risk that the design they have had permitted will not produce excessive noise. Should the developers learn that the Project as designed does, in the real world, cause improper noise, the developers will need to take whatever steps are necessary to achieve compliance. This makes Condition 15 enough, as a legal matter, to answer the claims of aggrievement based on improper noise. Because Condition 15 adequately controls for noise, because the level of noise for the operating building will be capable of objective determination, and because there does not appear to be any great cause to think that, should excessive noise be uncovered, the Project can be engineered to meet state and local bylaw restrictions, the Plaintiffs cannot have any reasonable expectation of proving a legal harm concerning excessive noise.
With the presumption of standing concerning excessive noise in this manner rebutted, these Plaintiffs must demonstrate they will be aggrieved by the Project. The Winchester House Plaintiffs allege that they will suffer harm due to the Project's proposed forty-two air conditioning condensers, which they fear they will hear from their individual balconies and shared pool. In support of their aggrievement on grounds of increased noise, the Winchester House Plaintiffs present an expert affidavit discussing the additional noise the air conditioning equipment will likely produce. In his affidavit, acoustical expert Lawrence G. Copley stated that he conducted ambient sound monitoring from the rear of the Winchester House Plaintiffs' property on a January evening. Noting that the recent snowfall followed by sudden warming had increased the level of noise, Mr. Copley's testing showed a background ambient sound level of 43 dBA. He projected that under normal circumstances, the background ambient sound level would likely be around 40 dBA.
Based on the tested background ambient noise level of 43 dBA, the maximum allowable increase of noise under the General By-law would be 48 dBA (tonal noise) and maximum total increase of noise pollution would be 53 dBA (background noise). Mr. Copley predicted that the noise level experienced from the Winchester House Plaintiffs' balconies would be 54 dBA based on the proposed equipment models provided by the project developer. Mr. Copley stated that that the noise from air conditioning units tends to be tonal, which triggers the 5 dBA limit. Mr. Copley also noted that the actual air conditioning noise may be higher than 54 dBA because his calculations were based on the product information provided by the developer, who stated that different air conditioning models may ultimately be selected for the project.
Without the aid of Condition 15 of the Decision, this evidence would be enough to show that the Winchester House Plaintiffs plausibly might suffer some harm to a legally cognizable interest under G.L. c. 40B. But, as earlier explained, notwithstanding the evidence put forth by Mr. Copley, Condition 15 renders it impossible that the Project would be fully occupied and operated going forward in a manner where the forty-two air conditioning units would violate the town noise bylaw, and so disrupt the peace of the Winchester House Plaintiffs' use of their balconies and pool over time. Because the developers of the Project have to bring it into compliance by any means necessary to be able to go on operating the new building lawfully, the Plaintiffs do not have standing based on excessive noise concerns to challenge this Project.
6. Tree Impacts
The Private Defendants challenge the Winchester House Plaintiffs' standing to the extent it rests on grounds having to do with adverse impacts the Project will have on trees which stand near the border with the Winchester House Plaintiffs' property. Six trees are located on the Winchester House Plaintiffs' property, and five trees are located on the property line. The Private Defendants argue that these Plaintiffs lack standing as to this issue for three reasons: first, the Private Defendants have a legal right to remove limbs and roots which invade their property; second, removal of the roots of any trees along the property line will be de minimis and not cause actual harm; and third, negative impacts to trees are not a protected interest under G.L. c. 40B.
First, as to the trees wholly located on their property whose roots extend into the Private Defendants' property, the Winchester House Plaintiffs cannot claim standing under a legal right which they do not have. The Private Defendants have a legal right to cut off limbs and roots which enter their property. See Michalson v. Nutting, 275 Mass. 232 , 234 (1931) ("Should the roots or branches invade or overhang the land of another, that party has a definite right of self-help to trim the roots and branches to the extent they are on his property."); Levine v. Black, 312 Mass. 242 , 243 (1942) ("there is no doubt of the right of adjoining [property owner] to cut off limbs and roots which invade his premises."). Therefore, the Winchester House Plaintiffs cannot assert standing based on any construction or other actions on the Project site which cuts off limbs or roots of the trees to the extent they actually are located on the Private Defendants' property, because these Plaintiffs will not suffer an infringement of their legal rights and have no legally cognizable interest affected.
Regarding the trees located on the property line, the Private Defendants present photographs of the trees, arguing that the harm to the trees will be de minimis. In response, the Winchester House Plaintiffs present the expert affidavit of arborist Mark Duntemann. (Ex. 29) Mr. Duntemann visited the Winchester House Plaintiffs' property to identify and evaluate the trees located near or on the property line. Mr. Duntemann identified eleven trees on or in close proximity to the property line as Norway Maples, Red Oaks, Sycamore Maples, and Trees of Heaven. Based on an accompanying survey submitted with Mr. Duntemann's affidavit, of those eleven trees, he says five are located on the property line. Mr. Duntemann submitted his expert opinion that excavation for the construction of the project will destroy the roots of trees located on the plaintiffs' property and on the property line, eventually causing the trees to die. Mr. Duntemann also stated that trees become accustomed to a certain amount of sunlight each day, and that the shadows resulting from the project will contribute to a decrease in sunlight, producing a negative impact to the trees over a longer period of time. His opinion, however, was not quantified in a way that provides "specific factual support." Butler v. Waltham, 63 Mass. App. Ct. 435 , 44142 (2005). For example, his affidavit does not provide quantifiable details regarding the reduced sunlight's effect on trees; rather it states "any new reduction in sunlight will have a negative impact upon the health of the tree." Even reading his submissions with indulgence, the court finds Mr. Duntemann's statements too general to confer any significant evidence substantiating this Project's potential negative impact. Rather, Mr. Duntemann's statements are broad and general, of the type which could be applied to almost any new construction project in a dense neighborhood.
The Private Defendants also argue that the type of impact to trees this Project might have is not an interest protected under G.L. c. 40B, §§ 20-23. These plaintiffs have not identified any legal authority that damage to trees indeed are within the area of concern protected under the comprehensive permit statutory scheme. At oral argument, the Winchester House Plaintiffs offered a strained reading of the Brookline Bylaws, connecting various definitions and bylaws together to conflate "open space" with protecting the few trees currently growing in between an apartment building and a parking lot. The court does not find that these trees are the type of "open space" the Town Meeting intended to protect when it enacted these bylaw provisions. The only evidence submitted suggests not the plausible case for material harm to these few trees, but rather the absence of any harm which may rise above the de minimis level. Neither the Winchester House Plaintiffs nor the Neighbor Plaintiffs have standing based on injury to trees.
7. Impacts from the Projects' Design and Density
In their complaint and answer to interrogatories, the Winchester House Plaintiffs expressed concerns about the Project's architectural design and size, and also claimed that the Project will cast a shadow over their property. The Private Defendants argue that design and aesthetic grievances are insufficient to confer standing on a plaintiff. See, e.g., Martin v. Corporation of the Presiding Bishop of the Church of Latter-Day Saints, 434 Mass. 141 , 146 (2001) and Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). Under G.L. c. 40B, this contention particularly rings true because the regulatory scheme enacted was intended to remove certain barriers to affordable housing developments. See Board of Appeals of Hanover v. Housing Appeals Committee in Dept. of Community Affairs, 363 Mass. 339 (1973). Because G.L. c. 40B does not protect aesthetic harms, the Private Defendants have rebutted the Plaintiffs presumption of standing. In any event, in response, Plaintiffs do not put forth any evidence on architectural character or other support to show standing on this issue. Therefore, Plaintiffs do not have standing on this issue.
Plaintiffs also bring claims regarding the Project's increase in shadows over their properties. These claims, however, also are not protected under G.L. c. 40B. Increased shadows are, to one degree or another, an almost-always inevitable byproduct of construction. In a scheme intended to promote dense housing to allow towns and cities to meet their affordable housing needs, affording protection against harms generated by increased shadows would undermine legislative intent.
The presumption having been rebutted, the Neighbor Plaintiffs point to the Private Defendants' own shadow study to demonstrate that the Project will increase shadows over their property. (Ex. 20). At oral argument, however the Private Defendants pointed out that the Project's projected shadows would have a de minimis effect on Plaintiffs' properties, largely taking place at limited times during the already-dark winter months. While I might otherwise find this to be a meaningful point, here too the shadow study is not accompanied by an affidavit and is not, as an evidentiary matter, properly lodged in the summary judgment record. Neither party, therefore, can properly rely on the shadow study as support for their moving and opposing papers. However, because increased shadows are not an interest protected under G.L. c. 40B, none of the Plaintiffs may base their standing on harm they fear will visit itself on them from increased shadows caused by the Project's construction.
Conclusion
The Private Defendants do not show categorically an absence of harms that the Plaintiffs plausibly may sustain as a result of the issuance of the comprehensive permit now under review by the court. To have had any prospect of doing so, they would have to have done more through discovery, and put the fruits of that discovery, if useful to them, into the summary judgment record. They would have to press the Plaintiffs, likely through depositions, in an effort to show that the Plaintiffs' claims indeed are unfounded and that they can have no reasonable expectation of proving a legally cognizable injury. Whether that expanded discovery would have yielded that result cannot be said on the limited record the parties have submitted to the court.
Instead, the Private Defendants present a number of unverified expert reports and legal arguments which only in part tend to show that, on some issues, Plaintiffs can have no reasonable expectation of proving a legally cognizable injury. The Private Defendants did not rebut the Plaintiffs' presumption of standing, at a minimum due to the unverified nature of the reports submitted, on issues of parking and traffic, waste and recycling, and fire safety. However, the Private Defendants did bring forward sufficiently supported contentions allowing the Private Defendants to rebut Plaintiffs' standing as to issues surrounding excessive noise, injury to trees, and aesthetic concerns, including shadows; as to these, the Plaintiffs did not successfully offer specific, quantifiable contravening evidence; nor did the Plaintiffs successfully argue that G.L. c. 40B does protect certain of those interests. Additionally, on the issue of harms flowing from stormwater management and runoff, the Winchester House Plaintiffs admitted in open court that they were not contesting that issue, and therefore cannot claim standing on that issue.
As to the issues considered by the court where the Private Defendants did not establish their right to prevail on summary judgment as matter of law on uncontested facts, because "no evidence was presented . . . that controverted the plaintiffs' presumption of standing," the Plaintiffs, as abutters, "[are] entitled to rely entirely on their presumed status of being aggrieved parties." Watros v. Greater Lynn
Mental Health & Retardation Assn., 421 Mass. 106 , 111 (1995), see also Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 128 (1999). As earlier observed, to be in the case when it is tried on the merits, Plaintiffs need to be able to set up only one proper recognized element of standing. The court, however, has reviewed each of the issued briefed, and has gone through all the grounds for aggrievement addressed by the parties in their summary judgment filings in an effort to guide the parties and to narrow the issues which need to be tried.
Counsel are to confer promptly. Within three weeks of the issuance of this Order, they are to submit a comprehensive joint written report. In that report counsel are to identify with specificity the positions of their respective clients on: the timing of the trial to be scheduled by the court in this case, the preparations required by the parties to be ready to proceed to trial, and whether there is any good reason for the court not to schedule a pre-trial conference.
It is
ORDERED that the Private Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. It is further
ORDERED that counsel are to confer and file the comprehensive joint written report called for by the court in this Order.
So Ordered.
TRUSTEES OF THE WINCHESTER HOUSE CONDOMINIUM TRUST, CAROL MURPHY EDBERG, CYNTHIA ALLYN, BRADLEY COHEN, and STANLEY BELASTOCK, and DONALD SHERAK, CHARLES SWARTZ, STEPHEN AULT, THOMAS GUTHEIL, HARRIET ROSENSTEIN, and SHANNON TOMMIE WOOLEY v. JESSE GELLER, CHRISTOPHER HUSSEY, KATE POVERMAN, LARK PALERMO, JOHANNA SCHNEIDER, and STEPHEN CHIUMENTI, as they constitute the BROOKLINE ZONING BOARD OF APPEALS, ROTH FAMILY, LLC, and 40 CENTRE STREET, LLC.