JEREMY N. STEVENSON and FARHANA R. STEVENSON, Trustees of the 4 Hampton Road Realty Trust, v. RALPH D. CLIFFORD, JEANNE K. KRIEGER, EDWARD D. MCCARTHY and JAMES A. OSTEN, as they are the Members of and Constitute the BOARD OF APPEALS OF THE TOWN OF LEXINGTON, and WAGON WHEEL REALTY, LLC.

Procedural History

The Complaint in this action was filed on April 30, 2018. The Answer of Wagon Wheel Realty, LLC was filed on June 5, 2018. Wagon Wheel Realty LLC's Motion for Summary Judgment, Memorandum of Law in Support of Wagon Wheel Realty, LLC's Motion for Summary Judgment, Wagon Wheel Realty, LLC's Statement of Material Facts (Def's. SOF), and Appendix (Def's. App. ) were filed on September 5, 2018. The Defendant Zoning Board of Appeals of the town of Lexington's Statement in Support of Defendant Wagon Wheel Realty, LLC's Motion for Summary Judgment was filed on September 14, 2018. The Plaintiffs' Brief in Opposition to Defendant Wagon Wheel Realty, LLC's Motion for Summary Judgment, including Statement of Undisputed Material Facts with the Plaintiffs' Responses and their Statement of Additional Facts (Pl's. SOF) and Appendix (Pl's. App.) was filed on October 5, 2018. The Defendant Wagon Wheel Realty, LLC's Responses to Plaintiffs' Statement of Additional Material Facts was filed on October 12, 2018. The court heard the motion for summary judgment on October 18, 2018, and took the matter under advisement. This Memorandum and Order follows.

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. Wagon Wheel Realty LLC (Wagon Wheel) owns the property located at 927 and 945 Waltham Street, Lexington, Massachusetts (Wagon Wheel property). Def's. SOF ¶ 1; Pl's. SOF ¶ 1.

2. Farhana Stevenson and Jeremy Stevenson (the Stevensons), as Trustees of the 4 Hampton Road Realty Trust (Trust), own and reside at 4 Hampton Road, Lexington, Massachusetts (Stevenson property). Def's. SOF ¶ 2; Pl's. SOF ¶ 2. Farhana Stevenson and Jeremy Stevenson purchased the Stevenson property on August 3, 2004. Def's. SOF ¶ 19; Pl's. SOF ¶ 19.

3. The Wagon Wheel property consists of two abutting properties together totaling 2.32 acres, with approximately 365.5 feet of frontage on Waltham Street in Lexington. Def's. SOF ¶ 4; Pl's. SOF ¶ 4.

4. The Wagon Wheel property abuts the Stevenson property along a portion of its rear lot line. Def's. SOF ¶ 13; Pl's. SOF ¶ 13.

5. Since 1960 Wagon Wheel has operated a business at the Wagon Wheel property which has included generally a nursery, garden center, and farm stand. [Note 1] Def's. SOF ¶ 15; Pl's. SOF ¶ 15. The operation of this business was allowed by a special permit obtained initially in 1960 and renewed continuously thereafter until 2017, at which time Wagon Wheel did not seek to renew its special permit on the grounds that the use of the Wagon Wheel property was benefitted by the protections of G.L. c. 40A, § 3, for agricultural uses. Def's. SOF ¶¶ 17- 18; Pl's. SOF ¶¶ 17-18.

6. On or about September 18, 2017, the Stevensons made a written request to the Town of Lexington Zoning Administrator (Zoning Administrator) seeking an order that Wagon Wheel cease and desist commercial retail operations at the Wagon Wheel property on the grounds that Wagon Wheel's business activities are not protected under G.L. c. 40A, § 3, and require a special permit. Def's. SOF ¶ 34, 36; Pl's. SOF ¶ 34, 36; Pl's. App. Exh. 8.

7. On November 9, 2017, the Zoning Administrator denied the Stevensons' request for zoning enforcement. Def's. SOF ¶ 37; Pl's. SOF ¶ 37.

8. The Stevensons appealed the Zoning Administrator's denial to the Board of Appeals of the Town of Lexington (Board). In a decision filed with the Lexington Town Clerk on April 12, 2018, the Board unanimously denied the Stevensons' request for zoning enforcement (the Decision). Def's. SOF ¶¶ 38, 47; Pl's. SOF ¶¶ 38, 47.

9. In the Decision, the Board made findings which, in relevant part, include:

13. The Board finds that the Site is exempted under provisions of M.G.L. c. 40A, § 3 which contains the agricultural exemption…

23. Because the uses, structures, and equipment are either principal exempt agricultural uses or accessory to that use, the Site is not subject to the Town's Noise Bylaw. Further, the odor issues raised by the Applicants are not within the purview of the Zoning Bylaw…

26. As a result of all the above findings, the Board finds no zoning violations at the Site with respect to the principal exempt agricultural uses, including supporting structures or with respect to accessory uses and structures in support of the principal exempt agricultural use.

27. The Board also finds that because there is no zoning violation with respect to either the principal or accessory agricultural use at the Site, that noise and odor from the Site are not subject to the Bylaw or the Noise Bylaw.

Def's. App. Exh. B.

10. The Stevensons as Trustees of the Trust allege that they are aggrieved by the Decision because excessive noise emanates from the Wagon Wheel property during business hours, approximately 7 a.m. through 5 p.m., Monday through Saturday. Pl's. App. Exhs. 4-5.

11. In their affidavits each of the Stevensons avers that sound from vehicles on the Wagon Wheel property, which includes trucks moving and beeping and sounds from the loading and unloading of rocks and boulders is startling, prevents enjoyment of the Stevenson property either inside or outside the house on the property, prevents the Stevensons from enjoying their home with the windows open, and interferes with their ability to work from their home office. Pl's. App. Exhs. 4-5.

12. The Stevensons further aver that they were aggrieved by objectionable odors emanating from the Wagon Wheel property but acknowledge that the odors are no longer a problem. Pl's. App. Exh. 4-5.

Evidence of Harm Due to Noise

13. Jeremy Stevenson works away from the Stevenson property during weekdays, leaving the Stevenson property between 8 a.m. and 9:30 a.m. and returning between 7:30 p.m. and 8 p.m. Def's. SOF ¶ 22; Pl's SOF ¶ 22.

14. Farhana Stevenson works from a home office at the Stevenson property approximately three days each week and spends approximately 40 percent of her workday on the phone. Def's. SOF ¶¶23, 25; Pl's. SOF ¶¶ 23, 25.

15. In response to an interrogatory Farhana Stevenson stated that she "cannot talk on the phone with the windows open. The sudden sounds are very jarring. If we step outside instead of hearing birds chirping, we hear the construction equipment. We planned to renovate our house. However, after speaking to some real estate agents we were advised against doing so as the noise from Wagon Wheel would prevent us from being able to regain our investment from such a renovation project." Def's. SOF ¶ 26; Pl's. SOF ¶ 26.

16. Farhana Stevenson was deposed and testified that in the seven years she has worked from home she has had two or three Skype calls interrupted because of noise from the Wagon Wheel property. The Skype calls were, in each case, transferred to the land line at the Stevenson property and successfully completed. Def's. SOF ¶ 27; Pl's. SOF ¶ 27. Farhana Stevenson further testified that one of the purposes in bringing this action was to maximize the eventual sale price of the Stevenson property. Def's. SOF ¶ 33; Pl's. SOF ¶ 33.

17. In her deposition Farhana Stevenson testified that a realtor told the Stevensons not to renovate their house at the Stevenson property because the noise from Wagon Wheel would prevent them from recouping their investment, but that, this opinion was given orally and not supported by any documentation. Def's. App. Exh. O; Def's. SOF ¶¶ 29-30; Pl's. SOF ¶¶ 29-30.

18. In support of the alleged aggrievement due to noise the Trust has submitted two affidavits, from a current and a former neighbor, corroborating the Stevensons' account of the noises at the Wagon Wheel property. Pl's. App. Exhs. 6, 9.

19. In response, Wagon Wheel has submitted six affidavits from other neighbors each making identical averments that the noise from Wagon Wheel is no louder than the surrounding businesses and that the affiants are unable to distinguish the noise generated by Wagon Wheel from that of surrounding businesses. Def's. App. Exhs. S-X.

20. Section 1.2 of the Zoning Bylaw of the Town of Lexington (the Bylaws) states that:

This bylaw has been adopted to govern the uses of land; the size, height, bulk, location and use of structures, buildings and signs; and for all other purposes set forth in, but not limited by, Section 2A of Chapter 808 of the Acts of 1975.

Pl's. App. Exh. 10.

21. Chapter 80 of the Code of the Town of Lexington (the Noise Bylaw) provides that "[g]eneration of excessive or unwarranted noise is prohibited, except as provided in §§ 80-5 and 80-8 of this by-law." Def's. SOF ¶ 51; Pl's. SOF ¶ 51; Def's. App. Exh. Y. The Noise Bylaw further provides that "[t]he provisions of this by-law shall not apply to sounds emitted during or associated with…Operation of a farm or any ancillary or related activity that is an ordinary aspect of farming." Def's. App. Exh. Y.

Discussion

Wagon Wheel's motion for summary judgment challenges the Trusts' standing to maintain its appeal of the Decision and seeks to have the Complaint dismissed. In order to have standing to challenge the Decision, the Trust 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). The Stevenson property abuts the Wagon Wheel property. The Trust, with the Stevensons as its Trustees, is therefore entitled to the rebuttable presumption that the Trust is aggrieved by the Decision.

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).

Wagon Wheel argues that the Trust cannot be an aggrieved party on the basis of either the noises or odors generated by Wagon Wheel on the Wagon Wheel property. The Trust has not defended its standing on the basis of offensive odors, and as the Stevensons have averred in their affidavits that odors from the Wagon Wheel property are no longer a problem, the court concludes that odor is not a basis for the Trust's standing and does not address it further. On the issue of noise, Wagon Wheel does not argue that harms related to noise are not protected by the Bylaws. Rather, Wagon Wheel argues that the Trust lacks standing because the Trust has not suffered any definite or material harm and that the Trust's complaints about noise are merely speculative and represent a de minimis harm.

Wagon Wheel has presented affidavits from neighbors which challenge the Trust's characterization of the level and impact of the noise generated by Wagon Wheel. Further, Wagon Wheel points to the unsubstantiated opinion of the realtor consulted by the Stevensons and argues that the allegation of financial harm resulting from noise is unfounded, speculative, and therefore cannot confer standing. Finally, Wagon Wheel argues that the effect of any noise generated by Wagon Wheel on Farhana Stevenson's ability to work from home is not a material harm because Farhana Stevenson's own testimony shows that in seven years only three Skype calls have been interrupted by noise from Wagon Wheel and all of them were successfully completed on a land line in the Stevensons' house. The supporting affidavits together with the speculative nature of the real estate value allegation and the seemingly limited effect of the noise on Farhana Stevenson's ability to work from home are sufficient evidence to rebut the Trust's presumption of standing based on harm from noise generated on the Wagon Wheel property.

While the Trust's presumption of standing has been rebutted, this only shifts the burden of proving standing to the Trust. The Trust's supporting affidavits present sufficient evidence of aggrievement that, when set against Wagon Wheel's supporting affidavits, creates an issue of material fact with respect to the actual intensity and disruptive nature of the noise generated at the Wagon Wheel property and its corresponding harmful effect on the Trust. While the realtor's opinion on the effect of the noise on the value of the Stevenson property may be unfounded, and at this stage inadmissible hearsay, Wagon Wheel has not put forth any credible evidence to foreclose the possibility that the alleged harm in fact exists. See Kenner, 459 Mass. at 123 ("Diminution in the value of real estate is a sufficient basis for standing only where it is derivative of or related to cognizable interests protected by the applicable zoning scheme.") (Internal citation and quotation omitted). Further, while it is true that by her own admission the noise has not prevented Farhana Stevenson from being able to work from home, that she is able to make telephone calls with the windows closed does not mean that there is not a material harm caused by the level of the noise generated at the Wagon Wheel property. To find otherwise would require drawing inferences in favor of moving party Wagon Wheel, something that is not permitted on summary judgment. Regis College, 462 Mass. at 293-294; Willits, 411 Mass. at 203. Material facts regarding the actual amount of noise generated by Wagon Wheel and its effect on the Stevensons remain in dispute and summary judgment on the issue of the Trust's standing is therefore inappropriate at this time.

Conclusion

For the foregoing reasons, Wagon Wheel Realty, LLC's Motion for Summary Judgment is DENIED. A telephone status conference is set down for April 16, 2019, at 10:15 a.m.

SO ORDERED