PEARL REALTY ASSOCIATES LLC v. ROBERT ALDOUS, JOHN BETHONEY, JAMES O'BRIEN, MICHAEL PODOLSKI, and RALPH STEEVES as members of the Dedham Planning Board and DEDHAM 800 LLC.

Introduction

Plaintiff Pearl Realty Associates LLC and defendant Dedham 800 LLC own abutting commercial properties on the east side of Providence Highway (Route 1) in Dedham. Pearl Realty's (688-700 Providence Highway) is the most northerly of the two, and the Dedham 800 site (750 Providence Highway) directly abuts its southern boundary line.

Pearl Realty's property is tenanted by two big-box retail establishments, a Best-Buy and a BJ's Wholesale Club. At present, Dedham 800's site has only a TGI Friday restaurant. The two properties share a curb cut off Route 1, each with cross-easements over the other's land, and are also presently connected by an internal driveway between the two sites. So far as the record shows, neither has any legal obligation to keep this internal driveway open.

Dedham 800 proposes to add a small (8,718 net square feet), one-story building to its property. To do so requires site plan approval from the Dedham Planning Board. [Note 1] As initially configured, all of the space in the building would have been used for retail purposes, and the Board granted site approval for that configuration. Pursuant to G.L. c. 40A, §17, Pearl Realty appealed that approval, basing its standing to do so on the ground, inter alia, that four of the parking spaces the building required under the zoning bylaw would be located on land not benefited by the curb cut cross-easement and thus overburden the easement (Case No. 16 MISC. 000665). Rather than litigate that issue, Dedham 800 mooted it entirely by reconfiguring the building, reducing the retail space to 3,718 square feet and using the remaining 5,000 as an urgent care center. This change eliminated the need for the four parking spaces in the non-benefited area. [Note 2] All parking is now located on land that the easement benefits, and site plan approval was granted once again by the Board. Pearl Realty appealed that approval pursuant to G.L. c. 40A, §17 (Case No. 18 MISC. 000167), [Note 3] and whether it has standing to do so is the subject of the present motions. [Note 4] If it does not (standing is jurisdictional), its appeal must be dismissed.

The sole basis of Pearl Realty's appeal is its objection to the condition in the Board's approval that requires an existing internal vehicle connection between the Dedham 800 site and another Dedham 800-owned property immediately abutting it on its south (hereafter, the "Dedham/Dedham connection") to be kept open so that vehicles can continue to go between the two Dedham 800 sites without driving onto Route 1. [Note 5] Pearl Realty objects to any such connection between the two Dedham 800 properties, even as it presently exists, because cars allegedly use it not only to go back and forth between the two Dedham sites, but also to travel to, from, or through Pearl Realty's site via the existing connection between the Dedham 800 and Pearl Realty sites (hereafter the "Dedham/Pearl Realty connection"). Pearl Realty could easily close the Dedham/Pearl Realty connection at its boundary line, ending any pass-throughs to its property entirely, but has taken no steps to do so. [Note 6] Instead, through its appeal in this case, it seeks to change the status quo by retaining the advantages of internal access between its site and the TGI Friday for its tenants and their customers, while terminating the existing internal access between the two Dedham 800 properties for the tenants and customers of those properties.

Standing is jurisdictional and requires aggrievement. See Watros v. Greater Lynn Mental Health & Retardation Assn., Inc. 421 Mass. 106 , 107 (1995); Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117-119 (2011). The right or interest "aggrieved" must be one that G.L. c. 40A and the local zoning bylaw protect, and "aggrievement" "requires a showing of more than minimal or slightly appreciable harm" to that right or interest. Kenner, 459 Mass. at 120, 121-122 (internal citation omitted). As stated in Kenner, the test is this:

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. To conclude otherwise would choke the courts with litigation over myriad zoning board decisions where individual plaintiffs have not been, objectively speaking, truly and measurably harmed. Put slightly differently, the analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by [the] proposed changes to an abutting property, not whether they simply will be 'impacted' by such changes.

Kenner, 459 Mass. at 122 (internal citations and quotations omitted). See also Rinaldi v. Board of Appeal of Boston, 50 Mass. App. Ct. 657 , 660 (2001) (burden of establishing standing not satisfied where proposed changes to buildings' use unlikely to cause "significant" increase in traffic and loss of parking spaces).

For the reasons set forth below, I find and rule that Pearl Realty's presumptive standing as an abutter was rebutted by the defendants, that the burden then shifted to Pearl Realty to come forward with credible evidence showing its aggrievement, that that evidence needed to come from experts, that Pearl Realty failed to present such evidence, and the motion to dismiss is thus ALLOWED. Pearl Realty's claims are DISMISSED IN THEIR ENTIRETY, WITH PREJUDICE.

Analysis

As noted above, Pearl Realty raises a single objection to Dedham 800's proposed new building, and thus a single basis for its standing to make that objection. Its objection is to the condition in the site plan approval that requires Dedham 800 to keep the existing connection between its two Route 1 properties open to vehicular traffic (the Dedham/Dedham connection), and to Dedham 800's changes to that connection (as noted above, the connection will be narrowed and re-located to avoid a wetland area). Pearl Realty's standing thus depends upon its ability to show (1) the number of additional cars, if any, that will use the Dedham/Dedham connection solely as a result of the changes to that connection, (2) the number of additional cars that will use the Dedham/Dedham connection as a result of the new building on the Dedham 800 site, (3) the number of those additional cars, if any, that will also use the Dedham/Pearl Realty connection, crossing over the Pearl Realty site, and (4) that the increase in traffic and loss of parking spaces on the Pearl Realty site from those additional cars, if any, will be "significant." See Kenner, 459 Mass. at 121-122 (harm must be caused by the change); Rinaldi, 50 Mass. App. Ct. at 660 (harm must be "significant").

Motions to dismiss for lack of standing are Mass. R. Civ. P. 12(b)(1) dispositive motions (lack of jurisdiction over the subject matter). Once the defendants filed their motions putting Pearl Realty's standing at issue, Pearl Realty was required to respond, and the issue must be judged on the record submitted in connection with those motions. Pearl Realty cannot simply rest on its allegations or the possibility of more or different proof. See Land Court Rule 4; see also Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989); Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949 , 950 (1983); Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397 (2002) (discussing similarly dispositive summary judgment motions). In response to the motions, it must come forward with "specific facts to establish perceptible harm." Murrow v. Emery, Mem. & Order Pursuant to Rule 1:28, 93 Mass. App. Ct. 1119 (2018), 2018 WL 3402106 at *3 (Jul. 13, 2018), quoting Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 724 (1996). Merely alleging that a bylaw has been violated is not enough. "The language of a bylaw cannot be sufficient in itself to confer standing: the creation of a protected interest (by statute, ordinance, bylaw, or otherwise) cannot be conflated with the additional, individualized requirements that establish standing. Murrow, 2018 WL 3402106 at *3, quoting Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 545 (2008).

Because it is an abutter, Pearl Realty started with a rebuttable presumption of standing. However, that rebuttable presumption "continues only until evidence has been introduced which would warrant a finding contrary to the presumed fact." Scaltreto v. Shea, 352 Mass. 62 , 64 (1967) (internal citation omitted). Dedham 800 successfully rebutted the presumption by introducing evidence showing (1) the adequacy of its parking (the number of spaces for the new building fully complies with Dedham's zoning requirements), [Note 7] (2) the minimal number of additional cars that will come to its site as a result of the new building, [Note 8] and (3) the type and minor nature of the change to the existing Dedham/Dedham connection (simply narrowing and re-locating it to avoid a wetland), [Note 9] which undercut the logic behind any assumption that, in and of itself (i.e., over and above the number caused by the new building, and thus already accounted for by Dedham 800's traffic study), the change would cause additional cars to come to the Dedham 800 site, let alone also cross over to the Pearl Realty site. This shifted the burden to Pearl Realty to prove aggrievement by credible evidence — here, as noted above, a "more than minimal or slightly appreciable harm" to parking, safety, or traffic circulation on its site caused by the change, "substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy," Kenner, 459 Mass. at 121-122 (plaintiff must "put forth credible evidence to show that they will be injured or harmed by the proposed changes to an abutting property, not whether they simply will be 'impacted' by such changes"). See also Rinaldi, 50 Mass. App. Ct. at 660 (harm must be "significant").

Because this burden of "credible evidence" concerns traffic and parking impacts on the Pearl Realty site and the need for those impacts to be "significant" in order for standing to exist, Pearl Realty can meet it only through expert testimony. See, e.g., Neurath v. Board of Appeals of Lexington, 2017 WL 953434 at *3-*5 (Mass. Land Ct., Mar. 9, 2017), aff'd 92 Mass. App. Ct. 1105 (2017), 2017 WL 4105714 (Mem. & Order Pursuant to Rule 1:28); Murrow v. Emery, Mem. & Order Pursuant to Rule 1:28, 93 Mass. App. Ct. 1119 (2018), 2018 WL 3402106 (Jul. 13, 2018); see also Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 36 (2006) (claims of traffic increase are concerns "beyond the scope of common knowledge, experience and understanding" and thus require expert evidence to "establish aggrievement") (internal citation and quotation omitted); Twardowski v. Ukstins, 19 LCR 431 , 436 (2011) (expert evidence typically required to establish traffic and parking-based aggrievement); Nihtila v. City of Brockton Zoning Bd. of Appeals, 19 LCR 395 , 396 (2011) ("[E]xpert knowledge and skill are required if one is to properly evaluate the impact of an alleged prospective increase in traffic and parking, as well as safety concerns of the sort alleged by the plaintiffs."); Kane v. Chan, 17 LCR 107 , 108 (2009) ("[C]laims of harm . . . due to . . . traffic . . . are required to be supported by expert evidence "); Martinonis v. Movalli, 15 LCR 532 , 534 (2007) ("[I]ntuitive conclusions about what will and will not exacerbate traffic are not countenanced by the courts; real proof based on traffic engineering and expert study and analysis is required to prove traffic harms and to show their particular and specialized adverse effect on the plaintiff."); Hilltop Gardens Inv. LLC v. JMK Dev., LLC, 13 LCR 202 , 206 (2005) ("Traffic impact is a matter for expert testimony."); Brookins v. Boston Zoning Comm'n, 24 LCR 643 , 647 (2016) (plaintiff's "speculative and unsupported personal opinion" insufficient to establish aggrievement on basis of parking and traffic impacts); Lowell v. Marquis, 16 LCR 205 , 206 (2008) (alleged traffic impacts not supported by expert evidence "too speculative and remote to convey standing").

As noted above, Pearl Realty was required to come forth with such expert evidence in response to these motions. See Land Court Rule 4; see also Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989); Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949 , 950 (1983); Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397 (2002) (discussing similarly dispositive summary judgment motions). It has not done so. The expert report submitted by Pearl Realty only analyzed existing conditions (the effects of existing cut-through traffic) and neither addressed nor analyzed what, if any, harm would arise from the addition of the new building and the minor change to the Dedham/Dedham connection (i.e., the "change" that they would cause).

Conclusion

For the foregoing reasons, the defendants' motions to dismiss are ALLOWED and Pearl Realty's claims in Case No. 18 MISC. 000167 (KCL) are DISMISSED IN THEIR ENTIRETY, WITH PREJUDICE.

Because the configuration addressed in the site plan approval appealed in Case No. 16 MISC. 000665 (KCL) was superseded by the later configuration appealed in Case No. 18 MISC. 000167 (KCL), that earlier case is also DISMISSED IN ITS ENTIRETY, AS MOOT.

Judgments shall enter accordingly.

SO ORDERED.