Defendant The Bevilaqua Company, Inc. ("Bevilaqua") plans to build two buildings, each with four dwelling units, on an approximately 30,000 square foot parcel of land on East Main Street in Gloucester. The property is presently improved by a vacant building that used to be a restaurant, but has been unused for several years. Bevilaqua secured variances from the side- and rear-yard dimensional requirements of the Gloucester Zoning Ordinance to facilitate its intended development project, and plans to apply for a special permit from the Gloucester City Council, necessary to authorize the eight dwelling units intended for the site. The plaintiffs, two separate landowners with property in the vicinity but not abutting the project site, oppose the proposed development on various grounds. Bevilaqua, with the assent of the Gloucester Zoning Board of Appeals and the owner of the property, Son, LLC, has moved for summary judgment on the grounds that the plaintiffs are not aggrieved persons within the meaning of G. L. c. 40A, § 17, and therefore do not have standing to pursue this action. For the reasons set forth below, I agree with Bevilaqua, for whom summary judgment will be granted.
FACTS
The following material facts are found in the record for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of the motion for summary judgment:
1. The subject property at 116 East Main Street in Gloucester (the "Property") is owned by Son, LLC, and is under agreement to be purchased by Bevilaqua.
2. The Property is presently improved by a one-story building, 21 feet in height, that was formerly occupied as a restaurant, but which has been vacant for several years.
3. After initially applying to construct a larger project on the Property, Bevilaqua modified its proposal to include two buildings, each with four dwelling units, with two off-street parking spaces for each unit, and with a height of 29 feet. The proposed development, as so modified, required a variance for each of the two side-yard setbacks, and a variance from the rear-yard setback requirements of the Gloucester Zoning Ordinance.
4. The Gloucester Zoning Board of Appeals ("Board") following a public hearing, granted the requested dimensional variances from the side-yard and rear-yard setback requirements, in a decision that was filed with the city clerk on October 2, 2018.
5. The plaintiffs filed a timely appeal pursuant to G. L. c. 40A. § 7.
6. Plaintiff Gloucester Writers Center, Inc. ("GWC") owns a one-story "cottage" at 126 East Main Street in Gloucester, which it uses for writers-in-residence programs and other activities connected with its mission of supporting writers and poets in Gloucester.
7. The GWC property does not abut the Property, nor does it abut the property of any abutter to the Property. The GWC property is approximately 170 feet away from the Property at its closest point, and is separated from the Property by two other properties and by a way named Caledonia Place. One of the properties between the GWC property and the Property is occupied by a convenience store and a gasoline filling station.
8. Plaintiff Pamela Steele owns and resides at property improved by a single-family dwelling at 10 Pilots Hill in Gloucester. ("Steele property") The Steele property is an "abutter to an abutter" to the Property, but at its closest point it is about 588 feet away from the Property.The Steele property is also up a steep hill from the Property, with an approximately 80-foot change in elevation between the two properties.
9. The Steele property is also several blocks away from the Property, with no direct road from Pilots Hill to East Main Street in the vicinity of the Property.
10. Because neither of the plaintiffs' properties was either an abutter, was directly across a street, or was an abutter to an abutter within 300 feet from the Property, neither of the plaintiffs qualified as a party in interest pursuant to G. L. c. 40A, § 11 with respect to the public hearing held on Bevilaqua's application for dimensional variances for the Property.
DISCUSSION
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Boazova v. Safety Ins. Co., 462 Mass. 346 , 347 (2012); Mass. R. Civ. P. 56(c). "The party moving for summary judgment assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue, even if he would have no burden on an issue if the case were to go to trial." Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989). The substantive law at issue in the case determines whether a fact is material. See Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006). Material facts bear on the outcome of the case. See Jupin v. Kask, 447 Mass. 141 , 145-146 (2006). Bare assertions and conclusions regarding a party's understandings, beliefs and assumptions are not sufficient to withstand a well-pleaded motion for summary judgment. See Key Capital Corp. v. M & S Liquidating Corp., 27 Mass. App. Ct. 721 , 728 (1989). Once the moving party establishes the absence of a triable issue, the nonmoving party must respond and offer evidence of specific facts establishing the existence of a genuine issue of material fact in order to defeat the motion. Pederson v. Time, Inc., supra, 404 Mass. at 17.
"[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case. To be successful, a moving party need not submit affirmative evidence to negate one or more elements of the other party's claim
The motion must be supported by one or more of the materials listed in rule 56 (c) and, although that supporting material need not negate, that is, disprove, an essential element of the claim of the party on whom the burden of proof at trial will rest, it must demonstrate that proof of that element at trial is unlikely to be forthcoming."
Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991).
Bevilaqua argues that the plaintiffs are not aggrieved by the Board's decision, and therefore lack standing to proceed with their complaint. "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 Road., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012). "[A]butters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner," are entitled to notice of zoning board hearings and "enjoy a rebuttable presumption [that] they are 'persons aggrieved'" by a decision concerning another property. G. L. c. 40A, § 11; Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996).
While a plaintiff who is a party in interest has the benefit of the presumption of standing, and therefore does not have the initial burden of going forward with evidence to prove aggrievement, "it is always a plaintiff's burden to demonstrate her aggrievement." Murrow v.
Esh Circus Arts, LLC, 93 Mass. App. Ct. 233 , 238 (2018). For a plaintiff who "does not qualify as a party in interest and is not entitled to the presumption, the burden remained on [the plaintiff] to put forth credible facts of her specialized injury." Id. The "bald allegations in [a] complaint, which fail to set forth a particularized injury caused by" the proposed project, are not sufficient to meet the plaintiff's burden of showing aggrievement. Id.
A plaintiff with no benefit from the presumption, like a plaintiff with the presumption after the presumption has been rebutted, must "prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 700. To do so, "[t]he plaintiff must 'establishby direct facts and not by speculative personal opinionthat his injury is special and different from the concerns of the rest of the community.'" Id., quoting Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006). Furthermore, "[a]ggrievement requires a showing of more than 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 , 121-122 (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." See id. (internal citation omitted). The facts offered by the plaintiff must be more than merely speculative. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 543 (2008).
In support of its motion for summary judgment, Bevilaqua offers the plaintiffs' discovery responses which, it argues, reveal claims of aggrievement that are either unrelated to a protected interest, are not supported by any competent evidence, or are speculative. The claims of aggrievement, and the plaintiffs' responses supporting these claims, are addressed as follows: [Note 1]
Traffic and Parking. Both plaintiffs claim that the proposed improvement to the Property by the construction of eight dwelling units will generally add to the traffic burden on East Main Street in Gloucester. Neither claims to be a qualified traffic professional, and neither plaintiff offers any evidence, competent or otherwise, other than subjective and unspecific fears, in support of this claim. This is an insufficient basis for establishing a cognizable traffic impact, See Barvenik v. Board of Alderman of Newton, 33 Mass. App. Ct. 129 , 132-133 (1992) Furthermore, neither plaintiff even claims that their unsupported claims of increased traffic on East Main Street will impact their own properties in any way other than by the same general impact that the increase will have on all other properties in the area. This kind of general impact shared by the community, even if established, is an insufficient basis for standing if no particularized injury to the plaintiffs' properties is proven. "Here, the plaintiff[s'] interest is not substantially different from that of all of the other members of the community who are frustrated and inconvenienced by heavy traffic
" Nickerson v. Zoning Bd. of Appeals of Raynham, 55 Mass. App. Ct. 680 , 683-684 (2002). Aggrievement is not established by such general non-particularized impact.
With respect to the claimed impact on on-street parking, neither plaintiff purports to demonstrate that there will be a decrease in available on-street parking, or that if there is, it would affect them in the use of their properties in any way. Compare, Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 723 (loss of one on-street parking space by construction of driveway for hotel sufficient to support standing of plaintiff who lived across the street).
Character of the Neighborhood. Both of the plaintiffs evince a concern for the changes in the character of the neighborhood that might be wrought by the construction of eight dwelling units in this neighborhood zoned for neighborhood business. Specifically, plaintiff Steele offers in this regard: "When 60 residents show up at meetings to express their opposition, me among them, I think their objections and testimony demonstrate derogation of the neighborhood, detriment to the public good." [Note 2] GWC offered in support of its claim of derogation of the neighborhood, its concern that the neighborhood would change from the neighborhood as described in the works of important Gloucester writers and poets who are important to the mission of the Gloucester Writers Center. [Note 3]
A property owner does, in certain limited circumstances, possess a protected interest in shielding his or her district from the incursion of uses inconsistent with the purpose for which it is zoned. See, e.g., Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986) ("owners of property located in the same zoning district - a single-family, one-acre district - had a legitimate interest in preserving the integrity of the district from the intrusion of multi-family housing. Certainly, the interest of at least these plaintiffs was more than a general civic interest in the enforcement of the zoning ordinance."); Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass. App. Ct. 274 , 276 (1985) ("one who owns property in a residential district
and who uses the property for residential purposes, may be viewed as an aggrieved person for purposes of objecting to zoning changes in his residential district because, by reason of his residential use, he has a cognizable interest in preserving the residential character of the district.") The plaintiffs here do not fit the limited circumstances in which a property owner can claim aggrievement on the basis of a change in the character of the neighborhood. Plaintiff Steele does not allege or make any showing that her property is in the same zoning district as the Property, and as a residential owner it is difficult to see how she could claim to be injured by the incursion of a residential use into a district in which she does not reside. GWC also has not shown that its property lies in the same neighborhood business district, but assuming it is in the district, as a use that is at least partially residential itself (it supports a writers-in-residence program on its property) it cannot claim to be harmed by the incursion of another residential use into the district, especially given that the zoning relief claimed to be the basis of aggrievement is not actually the residential use, but three setback variances. Residential use generally is allowed as a matter of right or by special permit in the district.
But more fundamentally, the plaintiffs are not aggrieved because their claim of aggrievement in this regard is not protected. The Gloucester Zoning Ordinance, in its purpose section, section 1.2.1, does not purport to explicitly protect "neighborhood character." [Note 4] 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. Board. of Aldermen of Newton, supra, 33 Mass. App. Ct. at 132-133 ("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."); Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 32 n.16 ("[T]he Appeals Court correctly noted that '[a]n interest in preserving the rural character of the neighborhood is not a legally cognizable interest to be considered in determining standing.'").
Views. Both plaintiffs claim some diminished view as a result of the proposed construction. Both plaintiffs offered testimony that could at best be considered speculative and implausible in support of such a conclusion. Plaintiff Steele lives more than 588 feet away and 80 feet higher in elevation than the Property. She cannot see the vacant restaurant building on the Property from her home, and offered no evidence that the result would be any different if the proposed two new buildings were built. [Note 5] Members of GWC, looking across a gas station to the Property, claim they will see less of a granite side of a hill behind the Property if the new buildings are constructed. [Note 6] These concerns are purely speculative and unsupported and do not rise to the level of evidence sufficient to form the basis for a claim of aggrievement. Sweenie v.
A.L. Prime Energy Consultants, supra, 451 Mass. at 543.
However, it matters not whether the plaintiffs could plausibly show an impact on their views, because the Gloucester Zoning Ordinance does not recognize impact on views as an interest protected by zoning. [Note 7] "Generally, concerns about the visual impact of a structure do not suffice to confer standing
" Martin v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146 (2001). See Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 55 (2005) ("
we do not read the Tsagronis case to confer standing on a property owner who claims that development will obstruct a water view
Sheehan's concern with the visual impact of development on a nearby wooded hill strikes us as the type of aesthetic sensibility insufficient to impart standing."). While "a zoning by-law
can create a protected interest in views from a landowner's property," the Ordinance here does not provide additional protection for a property owner's interest in maintaining a view. Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 602 (2011).
A zoning bylaw or ordinance can give rise to protection of views either by expressly stating an intention to protect views, or implicitly though other applicable sections of the bylaw. See Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 520 (2011). As noted above, there is nothing in the Ordinance expressly stating an intention to protect views, and there is nothing in the excerpts of the Ordinance included in the record to suggest an implicit intent to protect the plaintiffs' views. Thus the Ordinance does not elevate views to the level of interest from which standing may arise. See Gottfried v. Betron, No. 14 MISC 488665 (Mass. Land Ct. Jan. 3, 2017) (Piper, J.) ("scattered references" to an interest in other bylaw sections that were inapplicable to the relief at issue could not serve as a basis for standing, as they did not make that interest generally protected in all circumstances). Furthermore, the dimensional controls that are applicable here contain no clear statements of purpose comparable to those in Marhefka from which even implicit protection for views might arise. Cf. Marhefka v. Zoning Bd. of Appeals of Sutton, supra, 79 Mass. App. Ct. at 520 (finding implicit protection for view where bylaw described yard setbacks as "intended to provide aesthetic value as well as serve as a spatial and visual buffer between lots," and addressed reduction of open space on lots). Accordingly, the fact that the construction of the proposed dwellings may alter the view from GWC's property in a manner that its members find aesthetically displeasing is not an injury through which GWC may establish standing. Steele, of course, does not seriously make any showing of any impact on her view.
Density and Overcrowding. An abutter, without expert support, can establish aggrieved person status where the granting of dimensional variances crowds the abutter's property. Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 12 (2009); 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, supra, 461 Mass. at 704-705. However, neither of the plaintiffs offer any evidence in the record as to how their properties are crowded by the granting of setback variances to a property that is separated from their properties by, respectively, two other properties, and nearly six hundred feet and eighty feet in elevation. Instead, the plaintiffs offer what can only be characterized as an aesthetic concern with respect to density and overcrowding. GWC also mentions a concern that the proposed construction will cause "further sewer and water infiltration, water pressure and street flooding [that will] affect our shared frontage along E. Main Street." [Note 8] However, GWC offers no engineering support or other competent evidence to support this plainly speculative statement of concern. Sweenie v. A.L. Prime Energy Consultants, supra, 451 Mass. at 543.
Noise, light and air, pollution. The plaintiffs allege impacts to these interests in their complaint, but offer no evidence that rises beyond speculation in support of these concerns. These assertions of injury, stated in the most conclusory fashion, without even a fig leaf of purported fact, are "just the type of 'uncorroborated speculations' sought to be avoided by the standing requirements of G. L. c. 40A, § 17." Marashlian v. Zoning Bd. of Appeals of Newburyport, supra, 421 Mass. at 723 n.5 (citing holding that unsupported claim of increased headlight glare was speculation).
Diminution in Property Value. Plaintiff Steele, in an obtuse way, asserts that the value of her property will be diminished as a result of a loss of her ocean view if the proposed two buildings are constructed. [Note 9] She relates the loss of value to the loss of view. GWC apparently claims no diminished property value as a result of the proposed new buildings. Plaintiff Steele offers no basis for her opinion that her property would lose value, nor does she offer any opinion as to how much her property's value would be diminished.
Ms. Steele's claim of diminished property value fails because she does not base the claimed loss on a protected interest, and because she offers no qualified evidence in support of the claimed loss even if it was tethered to a protected interest. Because the preservation of property value is not an interest that the G. L. c. 40A scheme is intended to protect, diminution in the value of real estate is only a sufficient basis for standing where it is "derivative of or related to cognizable interests protected by the applicable zoning scheme." Kenner v. Zoning Board of Appeals of Chatham, supra, 459 Mass. at 123. Here, Ms. Steele claims that the loss of value is a result of loss of views, which are not a protected interest.
Additionally, even if the claimed loss of value was tethered to a protected interest, Ms. Steele's opinion as to loss of value was insufficient to create a dispute of fact because, testifying as an owner, she failed to offer sufficient support for her opinion. "A nonexpert owner of property may testify to its value upon the basis of 'his familiarity with the characteristics of the property, his knowledge or acquaintance with its uses, and his experience in dealing with it.'" Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752 , 759 (2010), quoting from Winthrop Prods. Corp. v. Elroth Co., 331 Mass. 83 , 85 (1954). Here, Ms. Steele did not offer any explanation of her qualifications (other than being an owner) or her familiarity or experience, or any basis for her opinion or facts offered in support for her opinion beyond a bare assertion that there would be a loss of value of unspecified amount. "[W]hether an owner, or any other witness, is sufficiently qualified to offer an opinion as to the value of real property is a question committed to the judge's sound discretion." Canepari v. Pascale, 78 Mass. App. Ct. 840 , 847 (2011). Here, Ms. Ms. Steele has offered no basis at all for her opinion that there will be a diminution in the value of her property; I disregard her opinion as speculative and insufficient to create a question of fact, even with the benefit of all reasonable inferences. Moreover, even accepting for purposes of this motion that such a diminution in value would occur (which I do not), Ms. Steele has failed to relate this decrease in value to any legally cognizable injury, as she has related the loss of value entirely to loss of view, which I have ruled is not a protected interest. Accordingly, I am constrained to disregard her opinion that there will be a decrease in the value of her property, and that such decrease would be the result of an injury to a protected interest occasioned by the proposed construction on the Property.
CONCLUSION
The burden, both of going forward and of proof, in this case fell on the plaintiffs, as non-abutters and non-parties in interest, to provide credible evidence of a particularized injury to a protected interest. Even drawing all reasonable inferences in their favor, they have failed to do so. The injuries alleged are either unprotected under the Ordinance and G. L. c. 40A, or are not supported by credible evidence. For the foregoing reasons, I find and rule that the plaintiffs are not persons aggrieved within the meaning of G. L. c. 40A, § 17, and Bevilaqua's motion for summary judgment is accordingly ALLOWED.
Judgment of dismissal to enter accordingly.
THE GLOUCESTER WRITERS CENTER, INC. and PAMELA STEELE v. DAVID B. GARDNER, JOSEPH PARISI, III, MICHAEL C. NIMON, SAGE S. WALCOTT, KRIS HOWARD and ADRIA REIMER-NICHOLOSI, as they are members of the CITY OF GLOUCESTER ZONING BOARD OF APPEALS, SON, LLC, and THE BEVILAQUA COMPANY, INC.