SUSAN P. SHEMUGA AND GARY J. SHEMUGA v. JOANNE BEKSHA BROWN and ERIC ARBEENE, BRIAN K. WHITE, CAROL GOULD, BRIDGETTE KELLY & RORI STUMPF, AS THEY ARE MEMBERS OF THE MEDWAY ZONING BOARD OF APPEALS.

Defendant Joanne Beksha Brown sought a variance of 63 square feet from the minimum lot area requirements of the Town of Medway Zoning Bylaw ("Bylaw") in order to divide her property located at 85 Winthrop Street in Medway into two lots. Lot 1 would be in compliance with the Bylaw requirement of a minimum of 44,000 square feet. [Note 1] Lot 2 would only have 43,937 square feet of area, leaving a deficit of 63 square feet. [Note 2] The Town of Medway Zoning Board of Appeals ("Board") granted Ms. Brown's variance application on November 1, 2017, filed its decision with the Town Clerk on November 8, 2017, and the owners of the abutting property and plaintiffs in this action, Susan and Gary Shemuga ("Shemugas"), filed a timely complaint on November 21, 2017 appealing the Board's decision pursuant to G. L. c. 40A, § 17.

On July 20, 2018, Ms. Brown filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1) on the grounds that the plaintiffs lacked standing. On August 20, 2018, the Shemugas filed their opposition. A hearing was held before me on November 1, 2018. The gravamen of Ms. Brown's motion is that the Shemugas lack standing because they have not come forward with any evidence of a cognizable harm sufficient to support a finding that they are aggrieved persons within the meaning of G. L. c. 40A, § 17. For the reasons stated below, I agree that Ms. Brown has successfully rebutted the Shemugas' presumption of standing as abutters to the Brown Property and that the Shemugas have failed to come forward with credible evidence of an injury to a protected interest. Accordingly, Ms. Brown's motion to dismiss is ALLOWED.

FACTS

The following facts alleged in the complaint are accepted as true for the purposes of the pending motion to dismiss. Matters submitted by the parties that are outside the pleadings and are not in dispute were also considered by the court in ruling on this Rule 12(b)(1) motion. See Audoire v. Clients' Security Board, 450 Mass. 388 , 390 n.4 (2008) ("A judge…may consider documents and other materials outside the pleadings when ruling on a rule 12(b)(1) motion."). The undisputed facts established in the record and pertinent to the motion, with all reasonable inferences drawn in the light most favorable to the non-moving parties, the Shemugas, are as follows: [Note 3]

1. Ms. Brown is the owner of the property located at 85 Winthrop Street, Medway ("Brown Property"). [Note 4] The Brown Property is located in the Agricultural Residential I Zoning District under the Bylaw, in which the required minimum lot frontage is 180 feet and the required minimum lot area for a buildable lot is 44,000 square feet. [Note 5]

2. Norfolk County made two takings on the Brown Property, once in 1955 and again in 1962, in order to relocate two streets. The takings changed the shape of the Brown Property and reduced its size by 10,240 square feet. [Note 6]

3. The Shemugas are the owners of the abutting property located at 83 Winthrop Street, Medway ("Shemuga Property"). They also purchased a separate parcel of land located behind their property. [Note 7] The parties stipulated at the November 1, 2018 hearing that the Shemugas were granted a special permit by the Town to operate a kennel housing up to six (6) dogs on the Shemuga Property. With the benefit of the special permit, the Shemugas operate a "dog rescue" business at their property.

4. The dogs are let out on the exterior portion of the Shemuga Property and generally utilize this area at various times from 4:30 a.m. to 9 p.m., depending on Ms. Shemuga's work schedule. [Note 8]

5. Ms. Brown filed an application with the Board seeking a 63 square foot variance from Section 6.1 of the Bylaw in order to subdivide the parcel into two lots. Lot 1 would remain conforming while Lot 2 would have 43,937 square feet of area where the Bylaw requires a lot to have a minimum of 44,000 square feet. With the benefit of the variance, Lot 2 would be a buildable lot.

6. Hearings on Ms. Brown's variance application were held on October 18, 2017 and November 1, 2017. At the close of the November 1, 2017 hearing, the Board approved Ms. Brown's application for a variance and filed its written decision with the Town Clerk on November 8, 2017. [Note 9]

7. On November 21, 2017, the plaintiff filed the present action appealing the Board's decision pursuant to G. L. c. 40A, § 17.

DISCUSSION

In reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1), the court accepts as true the factual allegations in the complaint, as well as any favorable inferences reasonably drawn from them. Ginther v. Comm'r of Ins., 427 Mass. 319 , 322 (1998). In considering subject matter jurisdiction under this rule, the court may consider matters outside the four corners of the complaint, which are used to support the movant's claim that the court lacks subject matter jurisdiction. Id. at n.6.

Here, Ms. Brown argues that the Shemugas are not aggrieved by the Board's decision, and therefore lack standing to challenge it. "Under the Zoning Act, G. L. c. 40A, only a 'person aggrieved' has standing to challenge a decision of a zoning board of appeals." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012). "A 'person aggrieved' is one who 'suffers some infringement of his legal rights.'" Id., quoting Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 722 (1996). Moreover, abutters to the subject property "are entitled to a rebuttable presumption that they are 'aggrieved' persons under the Zoning Act and, therefore, have standing to challenge a decision of a zoning board of appeals." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 700. Although an abutter enjoys a presumption of aggrievement, a plaintiff claiming aggrieved person status "always bears the burden of proving aggrievement necessary to confer standing." Id. at 701, citing Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34-35 (2006). A defendant may rebut this presumption "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." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 702; see also Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570 , 573 (2016). Alternatively, "a defendant can rebut the presumption of standing by coming forward with credible affirmative evidence that refutes the presumption." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 702. "[T]hat is, evidence that warrant[s] a finding contrary to the presumed fact of aggrievement, or by showing that the plaintiff has no reasonable expectation of proving a cognizable harm." Picard v. Zoning Bd. of Appeals of Westminster, supra, 474 Mass. at 573. Rather than providing its own evidence, the defendant may also rely on the plaintiff's lack of evidence, obtained through discovery, to rebut a claimed basis for standing. See Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 35. If a defendant fails to offer sufficient evidence to rebut the plaintiff's presumption of standing, the abutter "is deemed to have standing, and the case proceeds on the merits." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 701.

Once a defendant has successfully rebutted the presumption, the burden then shifts to the plaintiff, with no benefit from the presumption, "to 'prove standing by putting forth credible evidence to substantiate the allegations.'" Murrow v. Emery, 93 Mass. App. Ct. 1119 (2018), quoting Picard v. Zoning Bd. of Appeals of Westminster, supra, 474 Mass. at 573. To do so, the plaintiff must "establish—by direct facts and not by speculative personal opinion—that his injury is special and different from the concerns of the rest of the community." Id.; see also Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 33. Furthermore, "[a]ggrievement requires a showing of more than a 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, 459 Mass. 115 , 122-23 (2011). 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. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005), quoting Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 722. 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. City of Waltham, supra, 63 Mass. App. Ct. 441 (internal citation omitted). In addition, the facts offered by the plaintiff must be more than merely speculative. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008).

Presumption of Standing.

The threshold step in evaluating the Shemugas' standing is determining whether they are entitled to the benefit of the presumption of aggrievement afforded by G. L. c. 40A, § 17. There is no dispute that the parties' properties abut each other. Accordingly, the plaintiffs are presumed to be persons aggrieved by the Board's decision with standing to challenge it.

Rebuttal of the Presumption.

The burden thus shifts to Ms. Brown, as the party challenging the Shemugas' standing, to come forward with evidence rebutting the presumption. The Shemugas allege in their complaint that they purchased their property cognizant that the property next door was too small support a second buildable lot, and that they relied on this fact in purchasing their property. The harm they allege from the construction of a dwelling on the lot next door is that a single-family residence and its normal use will be incompatible with their dog rescue business because the dogs they care for on their property may bark, and next door neighbors in close proximity may complain about the noise.

They claim no injury as a result of any use of or any anticipated activity or condition on the Brown Property, but rather are concerned that a conforming use of the Brown Property will be incompatible with their own use, which required a special permit to operate. Specifically, the Shemugas claim that they knew they "were going to have dogs and sometimes, you know, there is, you know, people who live next door that can be a problem." [Note 10] The Shemugas' complaint articulates that the reason they appealed the Board's decision was because the Shemugas relied on the information provided by their broker at the time they purchased their property that a house could not be built on the Brown Property due to its insufficient square footage and non-compliance with minimum lot requirements in an AR-I Zoning District. [Note 11] The Shemugas claim this information was valuable to them not because they would feel imposed upon by the use of the property next door as a single-family residence, but because they anticipate that occupants of the property next door would feel imposed upon by them because of their kennel and its anticipated attendant noise. The Shemugas' argue that their dog rescue kennel business, for which they possess a special permit to operate out of their residential home, would be adversely affected due to potential neighbors possibly complaining about barking dogs. [Note 12] As such, the Shemugas contend that they are "aggrieved persons" and, therefore, have standing to challenge the Board's issuance of a variance.

To rebut the evidence of this claimed injury, Ms. Brown points out that this anticipated interference with the Shemugas in the operation of their dog rescue business is the only concern raised by the Shemugas, and correctly argues that it is a speculative concern at best. Ms. Shemuga testified at her deposition that the reason she is objecting to the granting of the variance is because of the "possible interference with [her] rescue." [Note 13] Ms. Shemuga testified that it is a "possibility" and "an unknown" in regards to whether the dog rescue business would be harmed if a single-family residence was built on the Brown Property. [Note 14] Ms. Shemuga further testified that the Shemugas' operation of their dog rescue business "could be" detrimental to a family with a newborn baby, noting that the rescue dogs sometimes go out at 6:00 a.m. and may bark and wake up a sleeping baby. [Note 15] By coming forward with evidence that this complaint is the only claim of aggrievement adduced by the Shemugas, and that it is speculative, Ms. Brown has successfully rebutted the Shemugas' presumption of standing.

Evidence of Aggrievement Presented by the Plaintiffs.

While 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," the evidence provided "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. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). To meet the standard of "credible evidence," the evidence offered must provide specific factual support for each of the claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Id. at 441. "Conjecture, personal opinion, and hypothesis" are insufficient. Id.

The Shemugas failed to provide credible evidence to substantiate their allegations of standing. 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 700. This is fundamentally for three reasons. First, their claimed injury is purely speculative. Second, the Shemugas claim no injury to a protected use of their property, such as a density-related concern. Third, their claimed injury is not a cognizable injury in that they anticipate no interference with their own use, but anticipate instead that their use will interfere with a future abutter who will complain.

The record demonstrates that any claimed injury by the Shemugas (resulting from the building of a home on the Brown Property) is purely speculative and according to Ms. Shemuga's own testimony, is "unknown." [Note 16] When asked whether she had "…any direct facts or evidence that the kennel would be adversely affected by having a home built on the lot[?]" she answered, "[u]nless you know who you're selling to, how would you determine that?" [Note 17] These speculative concerns, based on unsubstantiated personal opinions of the Shemugas, do not rise to the level necessary to accord standing under § 17. See Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 (2003) ("a plaintiff must be able to demonstrate, not merely speculate, that there has been some infringement of his legal rights"); see also Sweenie v. A.L. Prime Energy Consultants, supra, 451 Mass. at 543 (fear of damage from leaking underground gasoline tanks speculative, and therefore not cognizable, in absence of any evidence that tanks would leak).

Moreover, in the Shemugas' opposition, they did not submit any additional evidence of a cognizable harm caused by the granting of the variance. Although the variance granted was a dimensional variance allowing a reduction in minimum lot area, the variance was de minimis and could not be fairly related to any density concerns, had such concerns even been raised by the Shemugas. See Kenner v. Zoning Bd. of Appeals of Chatham, supra, 459 Mass. at 123 (de minimis impact on view from abutting property did not cause cognizable injury). But more importantly, the Shemugas, notwithstanding the dimensional variance granted, explicitly declined or failed to raise any such density-related concerns. Compare, 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, supra (appeal of variance for floor area ratio was sufficiently related to crowding and density concerns of plaintiff abutters).

Finally, appropriately categorized, the Shemugas' allegation of harm is not to themselves or to their property, but rather is a non-cognizable fear that a noxious aspect of their own use, noise from barking dogs, will cause harm to any otherwise conforming and appropriate use next door. Harm caused by one's own use to another's use of their property cannot be the basis of an injury forming the basis of aggrievement, quite aside from the fact that it is speculative. Essentially, the Shemugas contend that their use of their own property is noxious enough to cause injury to their anticipated neighbors, and their anticipated neighbors are bound to complain. This is not an injury related to the dimensional variance granted, nor is it related in any cognizable way to any interest protected by the Bylaw.

An abutter, in seeking to establish aggrievement, may not rely on an injury to his or her property interests that is not protected by the Zoning Act or by the local bylaw. There is no aggrievement where "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, supra, 461 Mass. at 702, citing Kenner v. Zoning Bd. of Appeals of Chatham, supra, 459 Mass. at 120. For example, changes to the aesthetic character or "feeling" of a neighborhood are not legally cognizable grounds for standing. See Harvard Square Def. Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989) ("…diminished enjoyment of the 'village feeling' of Harvard Square…essentially involv[es] the expression of aesthetic views and speculative opinions…"); Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132-133 (1992) ("Subjective and unspecific fears about the possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close neighborhood feeling, or the loss of open or natural space are all considered insufficient bases for aggrievement under Massachusetts law.")

Likewise, the Shemugas have failed to demonstrate that their claim of aggrievement, based on their own generation of excessive noise, is an interest protected by the Bylaw. While the Bylaw may recognize as a protected interest the right to be free of excessive noise, the Bylaw cannot mean that there is a right to protection from the consequences of excessive noise on one's own property. Accordingly, the Shemugas' claim of injury as a result of the excessive noise of their own dogs cannot be the basis of a cognizable injury.

CONCLUSION

The location of the Shemugas' property affords them the presumption of standing, and Ms. Brown provided evidence to rebut this presumption. The burden thus fell on the Shemugas to provide credible evidence of a particularized injury to a protected interest. They have failed to do so. The injuries alleged are not supported by credible evidence. For the foregoing reasons, I find and rule that the Shemugas are not aggrieved persons within the meaning of G. L. c. 40A, § 17. Accordingly, Ms. Brown's Motion to Dismiss is ALLOWED.

Judgment to enter accordingly.