LINDA PINGIARO Individually, JAMES P. DEMICHELE Individually and LINDA PINGIARO and JAMES P. DEMICHELE as Trustees of 48-50 Ash Avenue Condominium Trust v. 654 MYSTIC, LLC and Somerville Zoning Board of Appeals Members ORSOLA SUSAN FONTANO, RICHARD ROSSETTI, DANIELLE EVANS, ELAINE SEVERINO, JOSH SAFDIE, and ANNE BROCKMAN.

654 Mystic, LLC (Developer) seeks to redevelop a parcel of land that it owns in Somerville, Massachusetts, by dividing the parcel into three lots and constructing six townhome units across the three newly created lots (the project). Abutting neighbors Linda Pingiaro and James DeMichele (the Abutters), in their individual capacities and as the trustees of their condominium trust, oppose the proposed development. The Somerville Zoning Ordinance (Ordinance) requires site plan review in connection with applications for non-subdivision "lot splits." The Developer applied to the Somerville Planning Board (Planning Board) for site plan approval which was granted on three occasions subject to a list of conditions. The final iteration of the Planning Board's site plan approval was appealed to this court, pursuant to the Ordinance and G.L. c. 40A, § 17, in Miscellaneous Case No. 18 MISC 000152 (the Site Plan Appeal). While the Site Plan Appeal was pending the Developer applied for building permits, which were granted on September 27, 2018, and were appealed to the Somerville Zoning Board of Appeals (ZBA) by the Abutters on October 25, 2018. In a decision filed with the city clerk on January 23, 2019 (the ZBA Decision), the ZBA affirmed the grant of the buildings permits. The Abutters filed this action appealing the ZBA Decision pursuant to G.L. c. 40A, § 17, challenging the grant of the building permits on substantially the same grounds that they raised in the Site Plan Appeal. On March, 8, 2019, this court issued a Memorandum and Order Allowing Defendants' Motion for Summary Judgment (Summary Judgment Order) in the Site Plan Appeal, and entered Judgment affirming the site plan approval. The Abutters' appeal of the Judgment in the Site Plan Appeal has been docketed in the Appeals Court as case no. 2019-P-0954.

The Developer has moved for summary judgment in this action. The Developer argues that, in light of the Summary Judgment Order, the Abutters' challenges to the building permits, insofar as they are duplicative of those raised in the Site Plan Appeal, are barred by the doctrine of issue preclusion, and that, in any event, the Developer is entitled to summary judgment on the merits.

Procedural History

The Complaint in this action was filed on February 12, 2019. The Defendant 654 Mystic LLC's Motion for Summary Judgment, Memorandum of Law in Support of Defendant 654 Mystic LLC's Motion for Summary Judgment, Defendant 654 Mystic LLC's Statement of Material Facts as to which there is no Genuine Issue (Def.'s SOF), and Index Of Exhibits To Defendants': Memorandum in Support of Summary Judgment, Statement of Material Facts, and Affidavits of Jai Khalsa (Def.'s App.) were filed on April 26, 2019. The Plaintiffs' Opposition to Defendant 654 Mystic LLC's Motion for Summary Judgment, Brief in Support of Plaintiffs' Opposition to Defendant 654 Mystic LLC's Motion for Summary Judgment, Plaintiffs' Response to Defendants' Statement of Material Facts (Pls.' SOF), and Appendix to Plaintiffs' Opposition to Defendant 654 Mystic LLC's Motion for Summary Judgment (Pls.' App.) were filed on May 21, 2019. The Defendant 654 Mystic LLC's Reply to Plaintiffs' Opposition to Defendant's Motion for Summary Judgment was filed on June 17, 2019. The court heard the Defendant 654 Mystic LLC's Motion for Summary Judgment on July 10, 2019, 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 is to draw "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 or are deemed admitted:

1. The Developer owns the property located at 654 Mystic Avenue, Somerville, Massachusetts, by deed dated August 13, 2017, and recorded in the Middlesex South Registry of Deeds at Book 69423, Page 78. Def.'s SOF ¶ 1-2; Def.'s App. Exh. 1; Pls.' SOF ¶ 1-2.

2. Linda Pingiaro owns Unit 48B of the Ash Avenue Condominium; James DeMichele owns Unit 50B of the Ash Avenue Condominium; and they are the Trustees of the 48-50 Ash Avenue Condominium Trust. Def.'s SOF ¶ 3; Pls.' SOF ¶ 3.

3. In connection with the project, the Developer applied to the Planning Board for design and site plan approval on December 29, 2017. The plans submitted with the application appear in the summary judgment record as Exhibit 3 to the Defendant's Appendix (Planning Plans). The Developer supplemented the application with an updated set of plans which appear in the summary judgment record as pages 2-16 of the Plaintiffs' Appendix (Updated Planning Plans). The Planning Board granted a Conditional Site Plan Approval on February 13, 2018 (Planning Decision). Def.'s SOF ¶¶ 4-6; Def.'s App. Exhs. 2-4; Pls.' SOF ¶¶ 4-6; Pls.' App. pp. 2-16.

4. The Planning Decision was subject to 34 conditions. The seventh condition (Condition 7) provided that:

The Applicant shall present updated civil plans to the Planning Office and to the City's Engineering Department depicting how much fill will be added to the site, of what the fill is comprised, where the fill comes from, and detailing engineering renderings of what the actual finished grade will be. Planning and Engineering 8must [sic] sign off on these plans before any permits are issued for the work site.

Def.'s App. Exh. 4.

5. The Abutters filed the Site Plan Appeal of the Planning Decision on March 15, 2018. Def.'s SOF ¶ 9; Pls.' SOF 9.

6. On April 24, 2018, the Developer applied to the Somerville Inspectional Services Department (ISD) for three building permits—one for each of the newly created lots 654, 656, and 658 Mystic Avenue. The plans submitted to ISD in connection with the application for the building permits appear in the summary judgment record as Exhibit 6 to the Defendant's Appendix (Building Plans). Def.'s SOF ¶ 10; Pls.' SOF ¶ 10; Def.'s App. Exh. 6.

7. On September 27, 2018, ISD issued the three building permits (collectively the Permits) that the Developer applied for in connection with the project. Def.'s SOF ¶ 14; Pls.' SOF ¶ 14.

8. On October 25, 2018, the Abutters appealed the issuance of the Permits to the ZBA. The ZBA denied the Abutters' appeal on January 9, 2019, and filed the ZBA Decision with the Somerville City Clerk on January 23, 2019. Def.'s SOF ¶¶ 15-16; Def.'s App. Exh. 10; Pls.' SOF ¶¶ 15-16.

9. This court adjudicated the Abutters' appeal of the Planning Decision in Miscellaneous Case No. 18 MISC 000152. In the Summary Judgment Order issued in that case on March 8, 2019, the court considered the concerns articulated by the Abutters and affirmed the Planning Decision. In considering the Abutters' concerns specifically relating to the height of the proposed structures, the number of stories in each of the proposed structures, and the manner in which the Ordinance is applied to the project based on the grading of the property, the court relied on the measurements in the Updated Planning Plans which the Developer provided to the Planning Board after its initial December 27, 2017, application. As above, the Updated Planning Plans relied on by this court in the Summary Judgment Order appear in the Plaintiffs' Appendix at pages 2-16. The notable difference between the two sets of plans is that the "finished grade" stated on sheets A-021 and A-022 was revised from an elevation of 6 feet, 7.25 inches to 6 feet, 10 inches. Compare Def.'s App. Exhs. 3, with Pls.' App. pp. 10-11.

10. The measurements of the grading for the project which appear in the Updated Planning Plans provided to the Planning Board, Pls.' App. pp. 2-16, are the same as those in the set of Building Plans which were submitted by the Developer to ISD in its application for the building permits. Def.'s App. Exh. 6.

Discussion

The Complaint seeks to have the Decision annulled on the grounds that it exceeds the authority of the ZBA because (1) it is dependent on an illegal subdivision; (2) the project requires a special permit; (3) the project violates the Ordinance's height limitations; and (4) the project would not be allowed under a proposed amendment to the Ordinance. All of these issues as they relate to this project were previously raised by the Abutters in the Site Plan Appeal and were fully considered by this court in its Summary Judgment Order dated March 8, 2019. The Developer argues that all of the issues raised by the Abutters in the Complaint should be barred as res judicata.

"The term 'res judicata' includes both claim preclusion and issue preclusion." Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass. App. Ct. 86 , 98 (1999). "The doctrine of issue preclusion prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies. It requires proof that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication is identical to the issue in the current adjudication. Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment." TLT Const. Corp. v. A. Anthony Tappe and Assoc., Inc., 48 Mass. App. Ct. 1 , 4-5 (1999) (internal quotations and citations omitted).

In the Site Plan Appeal the Abutters challenged the Planning Decision on all of the same bases articulated in the Complaint. All of the issues relating to the division of 654 Mystic Avenue, the need for a special permit, alleged violations of the Ordinance's height limitations, and compliance with possible zoning reform were fully adjudicated in the Site Plan Appeal. Judgment has entered in that case and the conclusions of this court are now subject to review only by the Appeals Court. Notwithstanding the fact that this case arises from the appeal of building permits and the prior action was an appeal of a site plan approval, the issues and parties in this action are identical to those in the Site Plan Appeal. The relitigation of those issues is barred by the doctrine of issue preclusion.

With respect to the issue of building height the Abutters argue that the issue is not res judicata on the grounds that the project's compliance with the Ordinance's height limitations was not fully adjudicated in the Site Plan Appeal. In the Summary Judgment Order this court fully considered the project's compliance with the applicable height limitations in the Ordinance. The Abutters now argue that a subsequent grading plan required by the Planning Decision as a condition precedent to the issuance of Permits for the project gives the Abutters the opportunity to raise anew their challenge to the height of the project.

Condition 7 of the Planning Decision provides:

The Applicant shall present updated civil plans to the Planning Office and to the City's Engineering Department depicting how much fill will be added to the site, of what the fill is comprised, where the fill comes from, and detailing engineering renderings of what the actual finished grade will be. Planning and Engineering 8must [sic] sign off on these plans before any permits are issued for the work site.

Def.'s App. Exh. 4. The Abutters argue that the plans required by Condition 7 were necessary to address their challenge to the height of the project, that the Developer never submitted the required plans, that the plans were not approved as required by Condition 7, and that the ZBA did not address the Developer's failure to comply with Condition 7. To the extent that the Abutters seek to use the contents of the Building Plans to relitigate the application of the Ordinance's height limitations to the project, such claims are barred by issue preclusion. The Building Plans reflect no changes in the calculation of the finished grade for the project which was at issue in the Site Plan Appeal. This court's previous determination in the Site Plan Appeal that the project complies with the Ordinance's height limitations precludes the Abutters from seeking review of the very same issue in this action, whatever different posture it may be presented in. That the ZBA considered the height issue in the ZBA Decision rather than deferring to the Planning Decision does not create a separate issue which the Abutters are entitled to relitigate in this action. [Note 1] Def.'s App. Exh. 10.

The only issues raised by the Abutters in opposition to the Developer's motion for summary judgment which are not precluded by the Summary Judgment Order are the arguments that the Developer either did not submit the required plans, that the plans did not get the requisite approval prior to the issuance of the building permits, or that the ZBA erred in failing to address the absence of such plans from ISD record's in the ZBA Decision. The court addresses those issues.

Included in the Building Plans are three plans, each identified as "Drawing No. 3" and further identified as "Grading & Stormwater Plan," prepared by Strong Civil Design, LLC, and dated April 2, 2018. Def.'s App. Exh. 6. Each plan depicts the finished grade for the proposed townhomes at 654, 656, and 658 Mystic Avenue, Somerville, Massachusetts. Each of the three plans further states "[n]o additional fill proposed. Existing soils are suitable for re-grading minus any stones greater than 3 [inches] or any organic or contaminated material" (collectively, the Grading Plans). Def.'s App. Exh. 6. The Grading Plans address all of the concerns articulated by the Planning Board in Condition 7. Contrary to the Abutters argument, the ZBA expressly addressed Condition 7 and found that "[r]egarding engineering renderings, they are noted as 'Drawing 3' of the permit set for the site and were prepared by Strong Civil Design, LLC of Braintree. Condition 7 noted above (and as seen on attached Planning Board decision) has been met." Def.'s App. Exh. 10 at p. 10. The ZBA in the ZBA Decision found that the Grading Plans contained in the submission to ISD met the requirements of Condition 7.

The Grading Plans appear on their face to provide all of the information required by the Planning Board in Condition 7. Where (1) the developer submitted the Building Plans, including the Grading Plans, to ISD, (2) the ZBA in the ZBA Decision found that the Grading Plans satisfied Condition 7, and (3) the Grading Plans appearing in the summary judgement record do in fact appear to provide the information required by Condition 7, the only issue raised by the Abutters which remains is whether the portion of Condition 7 requiring that "Planning and Engineering…sign off on these plans before any permits are issued for the work site" was met, and, if not, what effect this lack of approval has on the Abutters' appeal of the ZBA Decision.

The Abutters are correct that the summary judgment record does not contain anything which is identifiable as—for lack of a better term—a "sign off" approving the Grading Plans. However, this argument presupposes the fact that it is the practice of ISD officials to actually create such a document or to in some manner sign or stamp submitted plans indicating such approval. What the record does show is that the Grading Plans were submitted to ISD, the Permits issued bearing the initials of the Building Inspector, Def.'s App. Exh. 8, and the ZBA found that "Condition 7 . . . has been met." Def.'s App. Exh. 10 at p. 10. The Abutters have raised the unsupported argument that, notwithstanding the ZBA's explicit finding, Condition 7 was not met because of a lack of affirmative evidence that the Grading Plans were approved. On review, "the court must find facts de novo and give no weight to those the board has found." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003). Nevertheless, in exercising that review, a board's decision will be upheld "if a rational basis for the [decision] exists which is supported by the record." Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001). The ZBA's finding that Condition 7 was met is supported by the Grading Plans and other documents that are in the record.

To the extent that reviewing the record for compliance with Condition 7 constitutes an improper inference in favor of the Developer—the moving party—that the issuance of the Permits or their subsequent affirmation by the ZBA impliedly means that the requisite approval was granted at the time the Permits issued, Willitts, 411 Mass. at 203, that does not create an issue of fact that would defeat the motion for summary judgment. The Abutters have not presented any evidence whatsoever to support their allegation that there was a defect in the issuance of the Permits which went unaddressed in the ZBA Decision. In opposing a motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Mass. R. Civ. P. 56(e). To defeat the motion for summary judgment on this argument, the Abutters were obligated to provide evidence in the form contemplated by Mass. R. Civ. P. 56(e) which suggests that the municipal officials who were charged with reviewing and approving the Grading Plans neglected to do so or that the policy of ISD was to produce a record of such approval, which does not exist. They have presented no such evidence. Instead, the Abutters have pointed to the absence of evidence while failing to provide affirmative evidence to suggest that the cited absence is material. This failure to provide any evidence that would support an inference contrary to the ZBA's finding, supported in the record, that the Grading Plans satisfied Condition 7 means that they have not raised a dispute of material fact on this question that would require denial of the motion for summary judgment.

The Abutters' failure to present any such evidence cannot be excused on the grounds that they did not have the opportunity to obtain such evidence. The filing of this motion for summary judgment was first discussed at the case management conference on March 18, 2018, and the Developer's motion was filed on April 26, 2018. The Abutters filed their opposition on May 21, 2019, and the motion was not heard until July 10, 2019. Had the Abutters felt that they needed additional discovery to support their argument for a procedural defect in the issuance of the Permits there was ample time for the filling of a motion under Mass. R. Civ. P. 56(f). No such motion was filed. As the Abutter's defense to summary judgment rests on the unsupported allegation that there was a procedural defect in the issuance of the building permits, the Developer's motion must be allowed and the ZBA Decision affirmed.

While not argued by the parties, the court next considers whether, in the uncommon posture of this case, the Abutters have standing under G.L. c. 40A, § 17, to maintain an appeal of the ZBA Decision solely on the grounds discussed above, that the Grading Plans were not actually approved as required by Condition 7. Standing in a zoning appeal under § 17 is a "jurisdictional prerequisite to proceeding with the case." Talmo v. Zoning Bd. of Appeals of Framingham, 93 Mass. App. Ct. 626 , 629 (2018) (internal quotations and citations omitted). As such, it may properly be raised by the court sua sponte. Id., citing Rental Property Mgmt. Servs. v. Hatcher, 479 Mass. 542 , 547 (2018), quoting from Nature Church v. Assessors of Belchertown, 384 Mass. 811 , 812 (1981) ("[W]henever a problem of subject matter jurisdiction becomes apparent to a court, the court has 'both the power and the obligation' to resolve it, 'regardless [of] whether the issue is raised by the parties'").

In order to have standing to challenge the ZBA Decision, the Abutters must be "person[s] aggrieved" by the ZBA 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).

Were the Abutters' claims that the project required a special permit or violated the Ordinance's height requirements not precluded for having been previously addressed in the Summary Judgment Order in the Site Plan Appeal, the court would be hesitant to reach through the veil of the Abutters presumptive standing. [Note 2] However, as those claims have been adjudicated, site plan review is complete and the project is now allowed by right under the Ordinance. When a use or structure is allowed by right under the applicable zoning ordinance, there can be no harm which gives abutters standing because, by the ordinance's own restrictions, any injuries resulting from the proposed use are not protected by the ordinance. By allowing a use or structure by right, the municipality has decided that its zoning ordinance will not protect neighbors or abutters from harms created by the use or structure. A use or structure which is allowed by right is, therefore, necessarily one for which an injured abutter has no standing to appeal.

Abutters may have standing to challenge a building permit for a by-right use or structure where they have alleged harms from the use or structure which are protected by the local ordinances or bylaws and they have further alleged that the use or structure should not have been allowed by right. This is exactly what the Abutters did in the Site Plan Appeal. This court having previously resolved the zoning based challenges to the project, it appears that there is no basis left for the Abutters to have standing to pursue an appeal of the ZBA Decision. "An abutter can have no reasonable expectation of proving a legally cognizable injury where the Zoning Act and related zoning ordinances or bylaws do not offer protection from the alleged harm in the first instance." 81 Spooner Road, LLC, 461 Mass. at 702. As the Abutters do not have standing to appeal the ZBA Decision on the remaining, non-precluded issue, this action is subject to dismissal for lack of subject matter jurisdiction.

That the Abutters do not have standing to challenge the ZBA Decision does not prejudice their rights. The concerns that the Abutters raised regarding the project's conformity with the Ordinance were properly considered in the Site Plan Appeal and will likely be heard by the Appeals Court in due course. If, as the Abutters argue, the Planning Decision should have been annulled, the ZBA Decision will have to be annulled and the building permits revoked. The relief sought in this action is available to the Abutters in the first instance in the Appeals Court in a review of the Summary Judgment Order.

Conclusion

For the foregoing reasons, the Defendant 654 Mystic LLC's Motion for Summary Judgment is ALLOWED. Judgment shall enter dismissing the Complaint without prejudice.

SO ORDERED