BRUCE SHAW, WALKER CHRISTIE, and ADAM NAVARA v. JESSE GELLER, CHRIS HUSSEY, MARK ZUROFF, JOHANNA SCHNEIDER, KATE POVERMAN, LARK PALERMO, STEPHEN CHIUMENTI, RANDOLPH MEIKLEJOHN, in their capacities as Members of the Brookline Zoning Board of Appeals, and SARGENT BEECHWOOD LLC.

The plaintiffs, Bruce Shaw (Shaw), Walker Christie, and Adam Navara have brought two miscellaneous cases, 18 MISC 000646 and 18 MISC 000647, pursuant to G.L. c. 40A, § 17, challenging decisions of the Brookline Zoning Board of Appeals (ZBA) granting special permits to the defendant Sargent Beechwood LLC (the Developer) for the construction of single family homes on two adjacent parcels of land in Brookline, Massachusetts. Each special permit granted similar relief subject to similar conditions. The Developer has moved to dismiss all of the claims in each case with respect to Shaw on the grounds that he does not have standing under G.L. c. 40A, § 17, to maintain this appeal. The court has deemed cases numbered 18 MISC 000646 and 18 MISC 000647 to be companion cases. The facts concerning Shaw's standing are the same in each case and the Developer's motions to dismiss are considered together in this Memorandum and Order. As discussed fully below, Shaw is not an abutter with the presumption of standing in either of the companion cases and has not alleged bases for standing which are personal to him but rather are reflective of the concerns of the community. The motions to dismiss will be allowed.

Procedural History

18 MISC 000646. The Complaint (Compl.) was filed on December 4, 2018. The Defendant Sargent Beechwood LLC's Motion to Dismiss, Defendant Sargent Beechwood LLC's Memorandum in Support of motion to Dismiss, Statement of Material Facts in Support of Motion to Dismiss (Def.'s SOF), and Appendix of Exhibits in Support of Motion to Dismiss (Def.'s App.) were filed on December 20, 2018. The Plaintiff Bruce Shaw's Opposition to Defendant Sargent Beechwood LLC's Motion to Dismiss, Plaintiff Bruce Shaw's Brief in Opposition to Defendant Sargent Beechwood LLC's Motion to Dismiss (Pl.s' Mem.), Plaintiff Bruce Shaw's Response to Defendant Sargent Beechwood LLC's Statement of Material Facts in Support of Motion to Dismiss and Additional Material Facts (Pl.'s SOF), and Plaintiff Bruce Shaw's Appendix of Exhibits in Opposition to Motion to Dismiss (Pl.'s App.) were filed on January 22, 2019. The Defendant Sargent Beechwood LLC's Reply to Opposition to Motion to Dismiss (Def.'s Reply Opp'n) and Defendant Sargent Beechwood LLC's Response to Plaintiff Shaw's Statement of Additional Material Facts were filed on February 11, 2019.

18 MISC 000647. The Complaint (Compl.) was filed on December 4, 2018. The Defendant Sargent Beechwood LLC's Motion to Dismiss, Defendant Sargent Beechwood LLC's Memorandum in Support of motion to Dismiss, Statement of Material Facts in Support of Motion to Dismiss (Def.'s SOF), and Appendix of Exhibits in Support of Motion to Dismiss (Def.'s App.) were filed on December 20, 2018. The Plaintiff Bruce Shaw's Opposition to Defendant Sargent Beechwood LLC's Motion to Dismiss, Plaintiff Bruce Shaw's Brief in Opposition to Defendant Sargent Beechwood LLC's Motion to Dismiss (Pl.s' Mem.), Plaintiff Bruce Shaw's Response to Defendant Sargent Beechwood LLC's Statement of Material Facts in Support of Motion to Dismiss and Additional Material Facts (Pl.'s SOF), and Plaintiff Bruce Shaw's Appendix of Exhibits in Opposition to Motion to Dismiss (Pl.'s App.) were filed on January 22, 2019. The Defendant Sargent Beechwood LLC's Reply to Opposition to Motion to Dismiss (Def.'s Reply Opp'n) and Defendant Sargent Beechwood LLC's Response to Plaintiff Shaw's Statement of Additional Material Facts were filed on February 11, 2019.

At a case management conference held on January 22, 2019, the court deemed 18 MISC 000646 and 18 MISC 000647 to be companion cases. The court heard the motions to dismiss in the companion cases (together the Motions to Dismiss) on February 25, 2019, and took the motions under advisement. On March 13, 2019, the court took a View as part of consideration of the Motions to Dismiss. This Memorandum and Order follows.

Standard on Motion to Dismiss

The Motions to Dismiss are brought pursuant to Mass. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim upon which relief can be granted. The court will consider the Motions to Dismiss under the standard for a motion to dismiss for lack of subject matter jurisdiction. A motion to dismiss for lack of subject jurisdiction unsupported by affidavit presents a "facial attack" based solely on the allegations of the complaint, which are taken as true for purposes of resolving the complaint. Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505 , 516 n.13 (2002). The court may, however, consider affidavits and other materials outside the pleadings when ruling on a motion to dismiss for lack of subject matter jurisdiction, at which point the burden falls to the plaintiff to prove the jurisdictional facts. Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505 , 515-16 (2002). If a party presents material outside the pleadings, the court may treat a motion to dismiss for lack of subject matter jurisdiction as a motion for summary judgment, shifting the burden to the defendant to show that there is no genuine issue of material fact. Williams v. Episcopal Diocese of Massachusetts, 436 Mass. 574 , 577 n.7 (2002). "Dismissals for lack of subject matter jurisdiction are ordinarily without prejudice because dismissal for lack of jurisdiction is typically not an adjudication on the merits." Abate v. Fremont Inv. & Loan, 470 Mass. 821 , 836 (2015), citing Bevilacqua v. Rodriguez, 460 Mass. 762 , 780 (2011). At the request and agreement of the parties the court took a View of the subject properties which will be considered as a part of the Motions to Dismiss. [Note 1]

Factual Allegations

The following facts are either undisputed or accepted as true, with inferences drawn in favor of Shaw, for the purposes of this Motion to Dismiss:

1. Shaw owns real property located at 165 Sargent Road, Brookline, Massachusetts (Shaw property). Compl. ¶ 1. [Note 2]

2. The Developer received two special permits from the ZBA in decisions each dated November 14, 2018 (the Decisions), to construct single family dwellings on properties situated at 60 Sargent Beechwood and 74 Sargent Beechwood, in Brookline, Massachusetts (together the Developer properties). Compl. Exh. A. Def.'s SOF ¶ 1; Pl.'s SOF ¶ 1.

3. The Shaw property and the Developer properties are situated in a community in Brookline, Massachusetts referred to as Sargent Estate. The Sargent Road Trust (Trust), under declaration of trust dated October 5, 1931, oversees the care and management of certain common elements within the Sargent Estate including the roads and the "Park Reservation." Compl. ¶¶ 11-12, 18; Def.'s Reply Opp'n Exh. A(1).

4. The declaration of trust provides that "[t]he trustees shall have the absolute power to hold, manage, and dispose of the trust property as if they were the absolute beneficial owners thereof, except that they may not sell, mortgage or lease the whole or any part of the trust property without the written consent of not less than two-thirds in interest of the beneficiaries." Def.'s Reply Opp'n Exh. A(1).

5. Shaw is a beneficiary of the Trust. The Trust owns the roads in Sargent Estate, including the road known as Sargent Beechwood. Compl. ¶¶ 10-12.

6. Shaw has averred that:

a. Sargent Pond, created by nineteenth century horticulturalist Charles Sprague Sargent, is on the Massachusetts and National Register of Historic Places;

b. He and his family chose to live in Sargent Estate because of the unique landscape, dedication to open space, focus on historic preservation, and goal of creating a landscape and horticultural sanctuary for the benefit of the beneficiaries of the Trust and their invitees;

c. He and his family enjoy walking and driving along the private roads including Sargent Beechwood and the Park Reservation because of the amenities of the unique and interconnected landscape formed by the amenities of the Sargent Estate, which is full of historic and beautiful plantings, gardens, and open spaces;

d. The Trust's maintenance of the described amenities makes Sargent Estate attractive to potential purchasers and enhances the value of the homes of the beneficiaries of the Trust;

e. As a beneficiary he owns a 1.255% equitable interest in the corpus of the Trust; and

f. He pays an annual assessment to the Trust which is used to maintain the roads and Park Reservation of the Sargent Estate. Pl.'s App. Exh. 2.

7. Shaw further averred that:

a. Until the Developer properties were purchased by the Developer, they were a single lot which contained a single house;

b. The Developer properties are on a steep slope that is heavily wooded;

c. The Developer properties are in a small portion of Sargent Estate where the applicable zoning allows for lots which are approximately 62% smaller than other lots within Sargent Estate;

d. The houses on Sargent Beechwood in the area of the Developer properties are much smaller than those proposed by the Developer and are built to reflect and harmonize with the slope of the land;

e. Having two adjacent houses which exceed floor area ratio and gross square footage requirements of the Zoning By-law of the Town of Brookline (by-law) on relatively small lots creates a looming presence and excessive bulk and mass, out of character with the relevant streetscape and neighborhood;

f. The looming presence and excessive bulk and mass, out of character with the relevant streetscape and neighborhood reduces and undermines the unique and historic nature of the Sargent Estate and lessens his enjoyment of the same; and

g. When he and his family purchased their residence in the Sargent Estate and obtained an equitable interest in the corpus of the Sargent Estate, they did so for the express purpose of being part of a unique and historic community that was dedicated to maintaining certain standards, including a focus on open space, an emphasis on the historical character of the neighborhood, and the preservation of trees and other landscaping. Pl.'s App. Exhs. 2, 4.

8. The Shaw property is more than 1,000 feet away from the Developer properties and is on a separate street. Def.'s App. Exhs. 1-1(C); View.

Discussion

The Developer has moved to dismiss Shaw as a plaintiff in each of the companion cases on the grounds that Shaw does not have standing to challenge either of the Decisions. Shaw argues that he is an abutter with the presumption of standing or, alternatively, that he has standing based on injuries relating to the massing, floor area ratio, and aesthetic design of the proposed single family homes as well as from issues relating to drainage, loss of trees, and diminished property value. The facts and arguments relevant to Shaw's standing are the same in each of the companion cases and are addressed as one in the following discussion.

In order to have standing to challenge the issuance of the Decision, the Shaw 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). Persons other than abutters with the presumption of aggrievement may have standing under G.L. c. 40A, § 17. "A plaintiff is a 'person aggrieved' if he 'suffers some infringement of his legal rights." Marashlian, 421 Mass. at 721. "[T]he right or interest asserted by a plaintiff claiming aggrievement must be one that the Zoning Act is intended to protect, either explicitly or implicitly." 81 Spooner Road, LLC, 461 Mass. at 700. "Aggrievement requires a showing of more than a minimal or slightly appreciable harm." Kenner, 459 Mass. at 121. A plaintiff must be able to "'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.'" Standerwick, 447 Mass. at 33, quoting Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992).

Shaw argues that he is an abutter with the presumption of standing because of his ownership interest in the corpus of the Trust, which includes the fee in the way known as Sargent Beechwood where it abuts the Developer properties. "A plaintiff is entitled to a rebuttable presumption of aggrievement if [they are] a 'party in interest' under [G.L. c. 40A, ] § 11." Murrow v. Esh Circus Arts, LLC, 93 Mass. App. Ct. 233 , 235 (2018). General Laws c. 40A, § 11, provides that:

"Parties in interest'" as used in this chapter shall mean the petitioner, abutters, 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 as they appear on the most recent applicable tax list, notwithstanding that the land of any such owner is located in another city or town, the planning board of the city or town, and the planning board of every abutting city or town.

Id. Shaw has brought this action in his individual capacity. As an individual, Shaw is not an abutter to the Developer properties and therefore does not benefit from the presumption of standing. The only property Shaw points to as abutting the Developer properties is the way, Sargent Beechwood. The fee in the way is owned by the Trust, not by Shaw. Any presumption of standing arising, if at all, from the ownership of the fee in the way abutting the Developer properties would therefore be conferred upon the trustees of the Trust. Shaw as a beneficiary of the Trust holds no interest in the way. See Welch v. City of Boston, 221 Mass. 155 , 157 (1915) ("It is one of the fundamental characteristics of trusts that the full and exclusive legal title is vested in the trustee. The rights of the beneficiary are purely equitable and cannot be enforced ordinarily at law, but are cognizable only in equity." (internal citation omitted)); Harrison v. Marcus, 369 Mass. 424 , 429 (1985) ("When land is conveyed in trust, the trustees generally take such an estate as is necessary to enable them to perform the trust."); O'Connor v. Redstone, 452 Mass. 537 , 553 n.26 (2008), citing Restatement (Second) of Trusts §§ 280-282 (1959) (Restatement); Restatement § 280 ("The trustee can maintain such actions or suits in equity or other proceedings against a third person as he could maintain if he held the property free of trust"); Restatement § 281 ("(1) Where the trustee could maintain an action at law or suit in equity or other proceeding against a third person if the trustee held the trust property free of trust, the beneficiary cannot maintain an action at law against the third person, except …(2) If the beneficiary is in possession of the subject matter of the trust, he can maintain such actions against the third person as a person in possession is entitled to maintain.").

Moreover, the declaration of trust which governs the Trust provides that "[t]he trustees shall have the absolute power to hold, manage, and dispose of the trust property as if they were the absolute beneficial owners thereof, except that they may not sell, mortgage or lease the whole or any part of the trust property without the written consent of not less than two-thirds in interest of the beneficiaries." Def.'s Reply Opp'n Exh. A(1). A suit under G.L. c. 40A, § 17, based on a harm to the owner of the fee in Sargent Beechwood is therefore properly brought by the trustees of the Trust, not by any of its beneficiaries in their individual capacities, and any presumption of standing to which the owner of the fee in the way may be entitled may only be asserted by the trustees.

Notwithstanding the conclusion that Shaw is not an abutter with the presumption of standing, he may yet have standing to challenge the Decisions if he "has suffered a specialized, cognizable injury 'not merely reflective of the concerns of the community.'" Murrow, 93 Mass. App. Ct. at 235, quoting Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211-212 (2003). Shaw has argued that he is harmed by the Decisions because the construction of the single family homes on the Developer properties will result in (1) an increase in density; (2) problems relating to stormwater drainage; (3) loss of trees; and (4) development which is inconsistent with the historical character of the Sargent Estate neighborhood.

Shaw argues that the Decisions will cause him a density-related harm because the proposed single family homes violate the by-law's floor area ratio restrictions. "An abutter has a well-recognized legal interest in 'preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow.'" Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 11 (2009), quoting Standerwick, 447 Mass. at 31. "[C]rowding of an abutter's residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal." Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 297 (2008). Shaw is not an abutter to either of the Developer properties. The Shaw property is on a different road, more than 1,000 feet away from the Developer properties. There is no harm Shaw could suffer in connection with the alleged violation of the floor area ratio which would be sufficiently perceptible and personal to confer standing on density grounds. To the extent that the ownership of the fee in the way known as Sargent Beechwood makes the Trust an abutter to the Developer properties, as discussed above, the trustees and not Shaw are the parties who could allege such a harm.

Shaw has further argued that stormwater drainage resulting from the proposed single family homes on the Developer properties may harm property held by the Trust which includes drainage infrastructure below the roads. Shaw has not alleged that the Shaw property will be harmed by stormwater drainage. As discussed, drainage harm to the way may have supported the trustees' standing, had they appealed the Decisions, but cannot confer standing upon Shaw.

Finally, with respect to the harms Shaw alleges from loss of trees on the Developer properties and the deviation of the proposed single family homes from the historic character of the Sargent Estate, Shaw's alleged harm is solely a diminution in the value of his property. "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.'" Kenner, 459 Mass. at 123, quoting Standerwick, 447 Mass. at 31-32. Shaw has not articulated any bases for aggrievement to which he could tether the alleged harm to his property value, nor has he shown that the harm to his property value is personal to him and different than the harm suffered by the rest of the community.

In connection with the allegation of harm to his property value, Shaw has argued that because the residents of Sargent Estate pay significant annual assessments for the maintenance of the common elements of the community he will suffer some heightened harm if the proposed project is allowed to proceed in a manner which changes the character of the neighborhood. Shaw's interest in living in "a unique and historic community…dedicated to maintaining certain standards," Pl.'s Mem. at p. 13, may be protected on a community level through various non- zoning means—restrictive covenants or homeowners associations for example—but may not be married to an appeal under G.L. c. 40A, § 17, in order to bolster standing. Shaw's election to live in a historical neighborhood of Brookline does not confer any additional benefit under the by-law not otherwise available to all the citizens of the town. Shaw has not pointed to any provision of the by-law that incorporates the private interests of the neighborhood. Moreover, even if considered as a separate harm, the alleged harm to the character of the Sargent Estate's neighborhood character is just that—a harm to the neighborhood generally. It is not a harm to Shaw that is "special and different from the concerns of the rest of the community." Standerwick, 447 Mass. at 33.

Conclusion

For the foregoing reasons, the Defendant's Motions to Dismiss are ALLOWED. Shaw's claims in Miscellaneous Cases 18 MISC 000646 and 18 MISC 000647 are DISMISSED without prejudice.

SO ORDERED