PAUL GALLAGHER vs. TOWN OF NAHANT ZONING BOARD OF APPEALS, by and through its members JOCELYN CAMPBELL, PAUL MORSE, PETER BARBA, GREG KEANE, DAVID WALSH, MAX KASPER and DONNA LEE LEONARDO, and DEIRDRE POCASE and MATTHEW PADULO, as the owners of 2 Linda Lane, Town of Nahant

INTRODUCTION

Plaintiff Paul Gallagher ("Mr. Gallagher") commenced this G.L. c. 40A appeal with the filing of a complaint on October 11, 2018, which was subsequently amended by the filing of a First Amended Complaint ("the Complaint") on December 10, 2018 to correct the name of a defendant. The defendants are the members of the Town of Nahant ("the Town") Zoning Board of Appeals ("the Board") - Jocelyn Campbell, Paul Morse, Peter Barba, Greg Keane, David Walsh, Max Kasper and Donna Lee Leonardo - and Deirdre Pocase and Matthew Padulo as the owners of 2 Linda Lane, Nahant ("the Owners" and "the Property" respectively). Mr. Gallagher seeks to annul the September 5, 2018 decision ("the Decision") of the Board upholding the Town's Building Inspector's ("the Building Inspector") July 9, 2018 denial of Mr. Gallagher's enforcement request with respect to (1) the grading and fill at the Property, which Mr. Gallagher asserts violate the Town's Zoning Bylaw ("ZBL"), §5.02(G); (2) the landscaping on the Property at the intersection of Wilson Road and Wilson Avenue, which Mr. Gallagher asserts violates the intersection visibility requirements of ZBL §5.02(E); and (3) the stone retaining walls on the Property, which Mr. Gallagher asserts violate the requirements for retaining walls set forth in ZBL §5.02(J).

By order dated February 28, 2019, the court allowed Mr. Gallagher's motion for permission to inspect the Property, permitting his legal counsel and an engineer of his choice to enter onto the Property for purposes of observing, photographing, surveying and measuring the exterior characteristics of the Property, including any retaining walls, but precluding any invasive or destructive testing. On February 7, 2020, the Owners filed the Motion For Summary Judgment Of Defendants Deirdre Pocase And Matthew Padulo ("the Motion") that is the subject of this decision. In the Motion, the Owners argue that they are entitled to the entry of summary judgment in their favor because, on the undisputed facts, (1) Mr. Gallagher's failure to appeal from the denial of his first request for enforcement of the ZBL precludes him from pursuing the appeal from the denial of his second request for enforcement at issue here; (2) Mr. Gallagher does not have standing to pursue the claims that he asserts; and (3), on the merits, the Owners' construction is in full compliance with the ZBL. For the reasons set forth below, this court concludes that it, as was the Board before it, is without jurisdiction to address Mr. Gallagher's claims regarding grading and fill or intersection visibility, that Mr. Gallagher has standing to assert his claims regarding the retaining walls on the Property and that, based on the undisputed facts in the record, summary judgment should issue in favor of the plaintiff pursuant to Mass. R. Civ. P. 56(c) because the failure to obtain a building permit for the construction of the retaining walls is a clear violation of the ZBL, requiring that the Board's decision upholding the Building Inspector's determination of no zoning violation be annulled.

UNDISPUTED FACTS

The following facts have been admitted by the parties either in their respective statements of undisputed material facts or in their response to the opposing party's statement of material facts or are undisputed in the record.

1. Mr. Gallagher is the owner of property at 51 Wilson Road, Nahant ("the Gallagher Property"). Amended Statement Of Undisputed Material Facts In Support Of Motion For Summary Judgment Of Defendants Deirdre Pocase And Matthew Padulo ("DSOMF") ¶ 4.

2. The Owners, Deirdre Pocase and Matthew Padulo, are the owners of the Property. DSOMF ¶ 21.

3. The Gallagher Property is directly across Wilson Avenue from the Property, at the intersection of Wilson Road and Wilson Avenue. Appendix Of Materials Supporting Plaintiff's Cross-Statement Of Facts In Opposition To Summary Judgment Motion Of Defendants Dierdre [sic] Pocase And Matthew Padulo ("P. App."), Tab A.

4. On March 7, 2017, the Owners obtained a foundation permit from the Town for the construction of a two-story single-family dwelling ("the Dwelling") at the Property. DSOMF ¶ 1 and Appendix To Statement Of Undisputed Material Facts In Support Of Motion For Summary Judgment Of Defendants Deirdre Pocase and Matthew Padulo ("D. App.") Ex. 1.A.

5. On July 17, 2017, the Owners filed an Application to Construct, Repair, Renovate, Change the Use or Occupancy of, or Demolish a One or Two Family Dwelling ("the Application") with the Town's Inspectional Services department. D. App. Ex. 1.B.

6. According to the document entitled "Process-Nahant Online Permitting" provided with the Application, plans for the Dwelling were received by the Inspectional Services department on August 1, 2017. D. App. Ex. 1.B.

7. The plans consist of 20 pages of construction drawings by Professional Building Systems, Inc. prepared between February and June 2017 and a plan entitled "Proposed Site Plan Linda Lane Nahant, Massachusetts Scale: 1"=10' February 3, 2017 Parsons and Faia, Inc. 90 Lewis Street Lynn, Mass." and revised February 16, 2017 ("the Site Plan"). D. App. Ex. 1.B.

8. The Site Plan does not show the stone retaining walls that were subsequently constructed at the Property, although it does show a concrete block wall along the rear property line. Id.

9. According to the Building Inspector, the building permit that was issued did not address the retaining walls and the last plan submitted to him before issuance of the building permit did not depict retaining walls. P. App. Tab F, p. 56.

10. On August 4, 2017, the Owners obtained a building permit for the construction of the Dwelling. DSOMF ¶ 2.

11. On September 9, 2017, the Owners' excavation contractor began to set down rocks along the Wilson Avenue side of the Property, directly across Wilson Avenue from the Gallagher Property. DSOMF ¶ 4.

12. On the same day, Mr. Gallagher sent an email to the Building Inspector that stated, in pertinent part:

I am writing you with regard to the home that is under construction on Linda Road [sic] at the corners of Wilson Road and Wilson Ave. As a direct abutter and one of the parties most adversely affected, I am specifically concerned with the topography and grading. Material generated from foundation excavation activities has been added atop the existing grade. The original elevation has been raised substantially and the natural landscape character has been altered. This is not in keeping with the general characteristics and appearance of the neighborhood; contrary to Section 5.01-G of the Nahant Bylaws: "Filling and Grade Changes of a Site". This [sic] is little doubt that the new grading will make an already poor drainage condition on Wilson Ave. even worse. 780 CMR; Section 5401.3 precludes pitching runoff towards others on public ways. The substandard rock "retaining walls" are suspected as well. Your attention to this matter is much appreciated. DSOMF ¶ 5.

13. Two days later, on September 11, 2017, Mr. Gallagher sent a second email to the Building Inspector in which he raised many of the same points as in his earlier email, but added concerns about the "retaining wall" and traffic visibility at the corner of Wilson Road and Wilson Avenue and specifically referenced §5.02(E)(2) of the ZBL. DSOMF ¶ 6.

14. During the week of September 11, 2017, the Building Inspector went to the Property, marked the 25 foot visibility setbacks from intersections required by §5.02(E)(2), and informed the Owners' excavation contractor and general contractor of the need to move rocks away from the corner. DSOMF ¶8; D. App. Ex. 2 ¶¶ 3-4.

15. The excavation contractor moved the rocks at issue within a few days thereafter. D. App. Ex. 3 ¶ 4.

16. Two days later, on September 13, 2017, the Building Inspector responded to Mr. Gallagher's emails:

I have visited the job site that is the object of your concern. As to the changing of grade, our zoning allows a retaining wall up to six feet in height which contradicts the mandate to keep the grade as natural as possible. As [] to visibility at the corner, I will address that issue with the homeowner and contractor. As to drainage, I will not agree with your assumption that drainage on Wilson Ave. will be adversely affected. The raised portion of the yard is two to three feet away from the actual property line. Please call my office with any questions. DSOMF ¶ 7.

17. On September 25, 2017, Mr. Gallagher filed a formal request for zoning enforcement with the Building Inspector ("the First Request"), stating that "the zoning ordinance is being violated because: change in grade, adding fill, retaining walls, visibility at corner." DSOMF ¶ 10.

18. The First Request further states that "Town Bylaws preclude changing grade beyond natural characteristics of the neighborhood and natural landscaping. Town Bylaws also prevent obstructions, plants, fences, etc. at intersection of two streets. There also are State Building Code issues regarding drainage, retaining wall construction etc." Id.

19. The Building Inspector responded to the First Request by letter dated October 6, 2017, in which the Building Inspector stated in pertinent part:

Let's take your concerns one at a time:

1.) Section 5.02.G - States that the landscape character of a lot shall be preserved in its natural state, "IN SO FAR AS PRACTICABLE". That leaves a lot of room for interpretation. My opinion is this: As in much as the zoning by-laws allow a retaining wall up to six feet in height, only changes in grade greater than 6 feet should be considered "NOT PRACTICABLE".

2.) Section r.02.E.2 [sic] - Visibility at corner. The homeowners have agreed to bring the rocks and soil back away from the corner so as to comply with this section. DSOMF ¶ 11 and D. App. 1.G.

20. Also on October 6, 2017, the Building Inspector requested that the Owners move rocks and soil further back from the intersection of Wilson Road and Wilson Avenue so as to comply with the requirements of ZBL §5.02(E)(2). DSOMF ¶ 14.

21. The Building Inspector marked the boundaries of the area regulated by ZBL §5.02(E)(2) with paint on Wilson Road and Wilson Avenue. See DSOMF ¶ 15.

22. On October 12, 2017, one of the Owners and the excavation contractor moved the rocks on the Property to align with the boundaries demarcated by the Building Inspector. Id.

23. Mr. Gallagher did not appeal the Building Inspector's denial of his First Request to the Board as permitted under G.L. c. 40A, §8. DSOMF ¶ 13.

24. At some unidentified date, but prior to the First Request, the Building Inspector issued a certificate of occupancy for the Dwelling. P. App. Tab F, pp. 13-15.

25. At the time that the certificate of occupancy issued, retaining walls, other than the rocks placed and resituated at the corner of Wilson Road and Wilson Avenue, had not yet been constructed. See id. at p. 14.

26. During late October 2017, the Owners' excavation contractor removed over 300 yards of fill from the Property. DSOMF ¶ 18.

27. During late November 2017, the Owners' excavation contractor created tiered walls to accommodate the Owners' driveway. DSOMF ¶19.

28. During May 2018, the Owners' excavation contractor started work on construction of a wall along Wilson Avenue and created the wall along the rear property line of the Property. DSOMF ¶¶ 20, 22.

29. During early June 2018, the Owners' excavation contractor resumed construction of the wall along Wilson Avenue, created a front, lower wall at the intersection of Wilson Road and Wilson Avenue, and created a higher section of wall along a portion of the property line abutting Wilson Road. DSOMF ¶¶ 23-25.

30. During early June 2018, rocks were also installed along the property line abutting Linda Lane and a lower section along a portion of the property line abutting Wilson Road. DSOMF ¶¶ 26-27.

31. On June 21, 2018, Mr. Gallagher, this time through his legal counsel, filed a second request for zoning enforcement with the Building Inspector ("the Second Request"). DSOMF ¶ 31; D. App. Ex. 1.I.

32. In the Second Request, Mr. Gallagher requested enforcement of the ZBL with respect to (a) the change in grade at the Property, which "now sits much higher than it did before; now sits much higher than many of the surrounding properties, including Mr. Gallagher's," in alleged violation of ZBL §5.02(G); (b) the construction of retaining walls surrounding most of the Property, that was never the subject of a building permit or a special permit under ZBL §5.02(J); and the wall at the intersection of abutting streets that, despite adjustments by the owners, "still appears to violate the height and twenty-five feet (25') diagonal requirements of Sections 5.02(E)(1)-(2)." D. App. Ex. Ex. 1.I.

33. On July 9, 2018, the Building Inspector denied Mr. Gallagher's Second Request, stating that "[i]t is my finding that there are no zoning violations at 2 Linda Ln., Nahant, MA." DSOMF ¶ 32; D. App. Ex. 1.J.

34. On August 8, 2018, Mr. Gallagher appealed the Building Inspector's denial of his Second Request. DSOMF ¶ 34; D. App. 1.K.

35. In his appeal, Mr. Gallagher again identified the topographical grade changes resulting from materials being relocated on the lot and other material being brought in resulting in the grade being at an increased elevation contrary to ZBL 5.02(G); the retaining walls being constructed without a building permit and, depending upon their height, a special permit, contrary to ZBL 5.02(J); and at least one of the retaining walls being closer to the nearest street corner than allowed by ZBL 5.02(E)(2). D. App. Ex. 1.K.

36. On September 5, 2018, the Board held a hearing on Mr. Gallagher's Second Request. D. App. Ex. 1.L.

37. At that hearing, the Board voted 5-0 to find that there were no zoning violations at the Property and to affirm the decision of the Building Inspector. Id.

The Relevant By-Law Provisions

Section 5.02(E) regulates traffic visibility at driveways and corners. Subsection 2 provides:

2. Traffic Visibility at Corner: Between the property lines of intersecting streets and a line joining points on such lines 25 feet distant from their point of intersection o[r][,] in the case of a rounded corner, the point of intersection of their tangents, no building or structure or obstruction may be erected in any residence district and no vegetation other than shade trees can be placed between a height of three feet and seven feet above the curb height.

D. App. Ex. 1.M.

Section 5.02(G) regulates filling and grade changes on a lot, and states: "The landscape character of a lot shall be preserved in its natural state, insofar as practicable, by minimizing tree and soil removal or filling, and any grade changes shall be in keeping with the general characteristics and appearance of neighboring areas."

Section 5.02(J) regulates fences and retaining walls. In pertinent part, it provides:

Fences and Retaining Walls: Fences and retaining walls may be constructed upon the issuance of a Building Permit, subject to the following restrictions and conditions, . . .

1. Height Limits: In the required Front Yard, fences and retaining walls shall not exceed five (5) feet in height, except by Special Permit as provided in this section. In the required Side and Rear Yards, fences and retaining walls shall not exceed six (6) feet in height, except by Special Permit as provided in this section. The applicable Special Permit Granting Authority may issue a Special Permit to allow fences or retaining walls to exceed the said height limits after considering the effect on safety, views, and access to light and air, relating to the property on which the fence is located, neighboring properties, and the Town as a whole.

The height of fences and retaining walls shall be the vertical distance of the highest point of the fence or retaining wall above the mean original grade of the ground undisturbed adjoining the fence or retaining wall before any construction is commenced. In the case of a fence on top of a retaining wall, the height shall be the total height of the fence and retaining wall.

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).

DISCUSSION

The Effect Of Mr. Gallagher's Failure To Appeal The Denial Of The First Request

The Owners contend that, under the teaching of Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008), Mr. Gallagher's failure to appeal the denial of his first request for enforcement of the ZBL bars his current appeal from the denial of the Second Request in all respects. While this court agrees that neither it nor the Board has jurisdiction to address Mr. Gallagher's claims of violations of §5.02(E) or §5.02(G) because of Mr. Gallagher's failure to appeal the Building Inspector's denial of the First Request, it reaches the contrary conclusion regarding Mr. Gallagher's claimed violation of §5.02(J): the retaining walls at issue were constructed after Mr. Gallagher's First Request and so could not have been the subject of it.

Appeals from denied requests for enforcement of zoning bylaws are governed by G.L. c. 40A, §§7, 8 and 15. Section 7 states in pertinent part that:

[t]he inspector of buildings, building commissioner or local inspector . . . shall be charged with the enforcement of the zoning ordinance or by-law . . . . If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request.

Section 7 also provides a six-year statute of repose for uses allowed by permit and structures erected in reliance on a permit. Connors v. Annino, 460 Mass. 790 , 794 n. 8 (2011) ("G.L. c. 40A, §7 also includes a 'repose' provision, i.e. a provision requiring that any action to compel the abandonment, limitation or modification of a use or structure allowed by a building permit must be brought within six years 'after the commencement of the alleged violation of law.' §7, second par."). [Note 1] As a result, requests for enforcement must be brought within six years of the commencement of the alleged violation.

Section 8 provides in pertinent part that "[a]n appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a[n] . . . enforcement action from any administrative officer under the provisions of this chapter, . . . or by any person . . . aggrieved by an order or decision of the inspector of buildings, or other administrative officer, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder." This provision permits an appeal from the decision by the appropriate official to issue a building permit. Section 15 provides in pertinent part that "[a]ny appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed."

In Gallivan, the plaintiff argued that §§7, 8 and 15, "properly read, offered her the choice whether to appeal from the building permit within thirty days from its issuance, or, instead, later seek enforcement of the zoning code against the challenged permit and appeal from the building inspector's denial of that request." Connors, 460 Mass. at 795. That argument

permits an aggrieved person, armed with knowledge of a zoning violation, to sit on her rights while the recipient of the permit incurs substantial expense by undertaking authorized construction, only to have the aggrieved person spring into action sometime in the next six years and demand enforcement of a zoning restriction.

Gallivan, 71 Mass. App. Ct. at 857. As described in Connors, the Gallivan court concluded, instead, that

the sections were more properly read to signify that the alternative remedy offered in §7 of requesting the enforcement of the zoning ordinance was only available where the aggrieved party does not have adequate notice of the building permit's issuance in time to challenge it within thirty days. See id. at 857-858. If, however, the aggrieved party does have adequate notice, the party "may not lawfully bypass that remedy and subsequently litigate the question by means of a request for enforcement under G.L. c. 40A, §7." Id. at 857.

460 Mass. at 795-796. The Connors court agreed with the Appeals Court's analysis in Gallivan:

We interpret §§7, 8 and 15 to mean that when a party with adequate notice of the issuance of a building permit claims to be aggrieved by the permit on the ground that it violates the zoning code, the party must file an administrative appeal within thirty days of the permit's issuance; a failure to do so deprives the board or other permit granting authority, and later the courts, of jurisdiction to consider the appeal.

460 Mass. at 797.

While holding parties with notice of the issuance of the building permit to the thirty-day appeal period, the Connors court also recognized instances where a later enforcement request would be proper. First, "an enforcement request may still be pursued under §7 if the aggrieved party can establish that he or she was without adequate notice of the order or decision being challenged." 460 Mass. at 797. Second, "[§] 7 would also continue to operate where an aggrieved party alleges that an abutter failed to obtain proper building permits." Id. "A third circumstance where an enforcement request under §7 might provide a remedy is one where a party claims that the beneficiary of an order that was valid as issued has allegedly exceeded the scope of the order." Id. at 798 n. 9. See also Barkan v. Zoning Board of Appeals of Truro, 95 Mass. App. Ct. 378 , 385 (2019) ("Connors provides three examples of scenarios in which an aggrieved party could use the enforcement path in this context: (1) the aggrieved party had not received adequate notice of the issuance of the permit, (2) the allegedly offending structure was built without a permit, and (3) the structure was built in a manner that exceeded the scope of a permit.").

Since the Gallivan and Connors decisions, the Appeals Court has held a number of plaintiffs to the thirty-day limit on appeals from the issuance of a building permit, finding their later filed requests for enforcement to be barred. See McIntyre v. Zoning Board of Appeals of Braintree¸ 94 Mass. App. Ct. 204 , 208 (2018) (appeal filed forty-four days after issuance of building permit was untimely, as a result of which "the board lacked jurisdiction to issue a decision on the merits, whether that decision was by written decision or by constructive approval"); Allison v. Zoning Board of Appeals of Falmouth, 2016 Mass. App. Unpub. LEXIS 996 at *7, quoting Richardson v. Bd. of Appeals, 81 Mass. App. Ct. 912 , 913 (2012) (enforcement request some 14 months after the issuance of the building permit was barred, where the plaintiffs "possessed evidence 'sufficient to place on [them] a duty of inquiry' into the building permit's issuance") (brackets in original); Moriarty v. Zoning Bd. of Appeals, 2015 Mass. App. Unpub. LEXIS 624 at *4 (enforcement request filed some four years after the issuance of the building permit was barred, the plaintiffs having "constructive notice sufficient to place on [them] a duty of inquiry"); Lemansky v. Zoning Bd. of Appeals of Charlton, 2013 Mass. App. Unpub. LEXIS 605 at *8 (enforcement request filed some twenty-one months after the issuance of the building permit barred where plaintiff "had adequate notice of the issuance of the building permit").

This case is different, as it is not Mr. Gallagher's failure to appeal from the initial issuance of a building permit to the Owners, but his failure to pursue an appeal from the Building Inspector's denial of Mr. Gallagher's First Request that is presented. A similar issue was presented to this court in Reznik v. Armour, 16 LCR 744 (2008) (Long, J.). There, some three weeks after a certificate of occupancy had issued for a new home, a neighbor, Mr. Reznik, emailed the local building inspector's office regarding his concern that the home exceeded the permitted residential gross floor area ("RGFA") under the applicable zoning ordinance. After further exchanges, the building inspector wrote to Mr. Reznik on October 12, 2007 denying his enforcement request. Id. at 745. On October 18 and again on December 4, 2007, Mr. Reznik wrote to the building inspector to contest the calculation of the RGFA and request enforcement. Id. at 746. On December 14, 2007, the building inspector responded that she had already denied his request in her October 12, 2007 letter. Id. Mr. Reznik then appealed from the building inspector's December 14, 2007 letter. Id at 747.

The court in Reznik concluded that, "[h]aving failed to appeal the building inspector's October 4 denial within thirty days, Mr. Reznik is precluded by G.L. c. 40A, §15 from seeking enforcement action based on RGFA absent a physical change to the structure in dispute." Id. As the court noted: "This may seem harsh, but it is not. Building inspectors' offices and zoning boards of appeal are busy places with much to do. As the statute recognizes, they should not be forced to deal with seriatim submissions on the same subject matter, which simply add new arguments or information." Id. According to the court, "[a] person making an enforcement request should be, and is, required to make only one such request for an alleged violation." Id.

As applied here, Mr. Gallagher's First Request expressly raised claims of alleged violations of §5.02(G), regulating filling and grade changes at the site, and §5.02(E)(2), regarding visibility at traffic intersections. Those claims were denied by the Building Inspector on October 6, 2017. Mr. Gallagher did not appeal. As a result, he is barred from asserting the same claims in his Second Request. The Board did not have jurisdiction to hear those claims, nor does this court.

Mr. Gallagher's claims regarding the retaining walls stand on different footing. The retaining walls had not been constructed at the time of Mr. Gallagher's First Request. And, notably, (1) the retaining walls were not included in the plans submitted to the Building Inspector to support the issuance of a building permit, and (2) the retaining walls were constructed subsequent to the issuance of a certificate of occupancy to the Owners and without the benefit of the building permit required by the ZBL, §5.02(J). [Note 2] The issue falls squarely within the second exception described in Connors. As a result, it is not barred by Mr. Gallagher's failure to appeal from the denial by the Building Inspector of his First Request.

Mr. Gallagher's Standing

Section 17 of G.L. c. 40A allows "[a]ny person aggrieved" by a decision of a special permit granting authority to appeal to, among others, this court. Courts have described a person aggrieved as one who "suffers some infringement of his legal rights," [Note 3] who has "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest" which right or interest is "one that the statute under which a plaintiff claims aggrievement intends to protect." Standerwick v. Zoning Bd. of Appeals, 447 Mass. 20 , 27-28 (2006). "The injury must be more than speculative." Sweenie, 451 Mass. at 543, citing Marashlian, 421 Mass. at 723. "Aggrievement" is not defined narrowly, 81 Spooner Road, LLC, 461 Mass. at 700, citing Marashlian, 421 Mass. at 721, but "[a]ggrievement requires a showing of more than minimal or slightly appreciable harm." 81 Spooner Road, LLC, supra, quoting Kenner, 459 Mass. at 121 and cases cited.

"Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption they are 'persons aggrieved.'" Marashlian, 421 Mass. at 721, citing Watros v. Greater Lynn Mental Health & Retardation Ass'n, 421 Mass. 106 , 111 (1995), and Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957). Accord Picard, 474 Mass. at 573; 81 Spooner Road, LLC, 461 Mass. at 700. That presumption can be rebutted in either of two ways:

The defendant, however, can rebut the 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, 461 Mass. at] 701. Alternatively, the defendant can rebut the presumption "by coming forward with credible affirmative evidence that refutes the presumption," that 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. Id., quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258, 797 N.E.2d 893 (2003).

Picard, 474 Mass. at 573.

Once the presumption is rebutted, "the plaintiff 'must prove standing by putting forth credible evidence to substantiate the allegations.'" Id., quoting 81 Spooner Road, LLC, 461 Mass. at 701. "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.'" Picard, 474 Mass. at 573-574, quoting Standerwick, 447 Mass. at 33. However, "[a] party challenging a board's decision need not prove by a preponderance of the evidence that his or her claim of particularized injury is true." Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 523 (2009) (assessing standing as an aggrieved party under G.L. c. 41, §81BB), citing Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005). "Rather, the plaintiff must put forth credible evidence to substantiate his allegations." Id. quoting Marashlian, 421 Mass. at 721. "Standing essentially becomes a question of fact for the judge." Kenner, 459 Mass. at 119.

As the Owners acknowledge in their Motion, Mr. Gallagher, as the "owner[] of land directly opposite on any public or private street or way," G.L. c. 40A, §11, is a "party in interest" as defined by G.L. c. 40A, §11. Accordingly, Mr. Gallagher has the benefit of the presumption. The Owners argue, however, that the only harm identified by Mr. Gallagher in his discovery responses relates to the impact of the Owners' construction on groundwater, a harm that is not particular to him. In his opposition to the Motion ("the Opposition"), Mr. Gallagher points instead to the impact on him of the retaining walls, shown in photographs submitted by Mr. Gallagher with his Opposition. P. App. Tab A. While a bit hyperbolic, the Opposition states that "the defendants' retaining wall practically sits inside the plaintiff's living room; it is terribly big, messy and unsightly." Opposition at p. 15.

It is enough to state that the Owners have not addressed, let alone rebutted, the harm now identified by Mr. Gallagher. The visual impact of the retaining walls is expressly identified as a protected interest in the ZBL. See §5.02(J). The Owners have not come forward with evidence "warranting a finding contrary to the presumed fact." Standerwick, 447 Mass. at 34, quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). And, even if the Owners had rebutted the presumption, Mr. Gallagher has come forward with photographic evidence, P. App. Tab A, that amply supports Mr. Gallagher's claim that he is personally impacted by the walls, which are located directly across Wilson Avenue, a narrow lane, from the Gallagher Property. See Krafchuk, 453 Mass. at 524 (relying, in part, on photographic evidence to establish harm). And he has come forward with credible evidence, albeit disputed, [Note 4] that the retaining walls exceed five feet in height, thereby implicating the ZBL provision requiring a special permit for walls in excess of that height after consideration of "the effects on safety, views, and access to light and air, relating to the property on which the fence is located, neighboring properties, and the Town as a whole." ZBL §5.02(J)(1); P. App. Tab E, Plaintiff Paul Gallagher's Supplemental Response To Interrogatories Of Defendants Dierdre [sic] Pocase And Matthew [sic], (Mr. Ogren is expected to testify "that the heights of certain retaining walls along the 'front' of the Property, along Wilson Road, are in excess of the five feet (5') height limitation imposed by the By-Laws"). Accordingly, this court concludes that Mr. Gallagher has standing to pursue this claim.

The Retaining Walls Violate The ZBL

Finally, the Owners argue that they obtained the required building permit for the construction of the retaining walls, but were not required to obtain a special permit since the retaining walls did not exceed the height at which the ZBL requires a special permit. Leaving aside the dispute as to the height of the retaining walls, the facts in the record do not support the Owners' argument that the necessary building permit was obtained. In fact, even when viewed in favor of the Owners, the facts are to the contrary.

"Summary judgment, when appropriate, may be rendered against the moving party." Mass. R. Civ. P. 56(c). That is so even where the opposing party has not filed a cross-motion for summary judgment. Charlesbank Apartments, Inc. v. Boston Rent Control Administration, 379 Mass. 635 , 636 n. 2 (1980) ("On a party's motion for summary judgment, judgment may pass for his opponent if the record warrants it, even in the absence of a cross motion for that relief.").

Here, the ZBL plainly requires that a building permit be issued for all retaining walls, §5.02(J) ("Fences and retaining walls may be constructed upon the issuance of a Building Permit") (emphasis added). According to the Building Inspector, no building permit was applied for or issued with respect to the construction of the retaining walls. See footnote 2, supra. On these facts, the Board's decision to uphold the Building Inspector's determination that the retaining walls did not violate the ZBL is legally untenable and will be annulled. E&J Props., LLC v. Medas, 464 Mass. 1018 , 1019 (2013) ("A board's decision 'cannot be disturbed unless it is based on a legally untenable ground,' or is 'unreasonable, whimsical, capricious or arbitrary.'") quoting Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeals of Billerica, 454 Mass. 374 , 381-382 (2009).

CONCLUSION

Based on the foregoing, summary judgment will enter annulling the Decision of the Board (1) with respect to alleged violations of §§5.02(E) and 5.02(G) of the ZBL because the Board did not have jurisdiction to hear those claims and (2) with respect to the alleged violation of §5.02(J) of the ZBL because the Decision of the Board was legally untenable. The matter will be remanded to the Board with instructions to reverse the Building Inspector's denial of Mr. Gallagher's request for enforcement of ZBL §5.02(J).

SO ORDERED.