PAUL GALLAGHER vs. TOWN OF NAHANT ZONING BOARD OF APPEALS, by and through its members JOCELYN CAMPBELL, PETER BARBA, DAVID WALSH, MAX KASPER, DAVID

INTRODUCTION

This G.L. c. 40A appeal, commenced on February 5, 2020, continues the dispute between plaintiff Paul Gallagher ("Mr. Gallagher"), the Town of Nahant ("the Town") Zoning Board of Appeals ("the Board") - as constituted for this appeal, Jocelyn Campbell, Peter Barba, David Walsh, Max Kasper and David McCool - and Deirdre Pocase and Matthew Padulo as the owners of 2 Linda Lane, Nahant ("the Owners" and "the Property" respectively) that was the subject of Gallagher v. Nahant Zoning Board of Appeals, 18 MISC 000525 (JSDR) ("Gallagher I"). In the earlier case, Mr. Gallagher sought to annul the September 5, 2018 decision of the Board upholding the Town's Building Inspector's ("the Building Inspector") denial of Mr. Gallagher's enforcement request with respect to three alleged zoning violations at the Property, including those related to the stone retaining walls on the Property, which Mr. Gallagher asserted violated the Town's zoning bylaw ("ZBL"), §5.02(J).

During the course of the earlier litigation, 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. As a result of that inspection, Mr. Gallagher's surveyor concluded that the retaining walls on the Property extended beyond the Property's boundary lines and into the adjoining streets, Linda Lane and Wilson Road. Complaint ¶ 17. Mr. Gallagher submitted a new request to the Building Inspector asking him to take action "with respect to this newly-discovered zoning violation." Complaint ¶ 18. The Building Inspector denied Mr. Gallagher's request, and the Board upheld that denial on appeal, finding that the encroachments discovered by Mr. Gallagher did not constitute a zoning violation. Complaint ¶ 19. The Board's decision, dated January 8, 2020, was filed with the Town Clerk on January 16, 2020. Complaint Ex. 1. This action was timely commenced with the filing of an appeal to this court on February 5, 2020. On February 27, 2020, the Owners filed the Motion To Dismiss Of Defendants Deirdre Pocase And Matthew Padulo ("the Motion") and, on March 24, 2020, Mr. Gallagher filed his opposition thereto. Because of the current emergency conditions resulting from the pandemic, the parties agreed that the court could rule on the Motion without holding a hearing.

DISCUSSION

In the Motion, the Owners argue that the Complaint in this case should be dismissed pursuant to Mass. R. Civ. P. 12(b)(6) because (1) the Complaint does not allege any new violations of the ZBL that are not already the subject of Gallagher I¸ (2) that Mr. Gallagher does not have standing to contest the encroachment of the retaining walls into Wilson Road and Linda Lane, which is a matter sounding in tort law, not zoning, and is between the Owners and the Town, and (3) that Mr. Gallagher unduly delayed in bringing this enforcement request some five months after his survey work was completed. The court concludes that Mr. Gallagher does not have standing to assert the claim set forth in the Complaint, and so this court is without jurisdiction to address it.

The issue of Mr. Gallagher's standing was a subject of this court's memorandum of decision and order in Gallagher I. The court incorporates herein its discussion regarding the law of standing as it has developed under the Zoning Act, G.L. c. 40A. Fundamentally, to have standing, a person must be one who "suffers some infringement of his legal rights," [Note 1] 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). In this case, Mr. Gallagher fails on both counts: no infringement of his legal rights is evident from the Owners' encroachment on the Town's ways; and encroachments are not a right or interest that the Zoning Act or the ZBL are intended to protect.

In Isaac v. Zoning Bd. of Appeals of Taunton, 65 Mass. App. Ct. 1113 , 1113 (2006), the plaintiff appealed from the grant of a variance to her neighbor to construct his home on a paper street. The plaintiff contended that, as the owner of land abutting the paper street several lots away and with an ownership interest in the paper street by virtue of the derelict fee statute, G.L. c. 183, §58, she had standing to contest the variance because it contemplated improvements to the paper street. Id. The Appeals Court rejected this argument:

Even if the plaintiff has a fee interest in part of Clark Street pursuant to the derelict fee statute, she has not shown how the grant of the variance results in actual infringement of her property rights. Without any particularized or cognizable harm, the plaintiff does not have standing under G.L. c. 40A, §17.

Id. The same is even more true here. Mr. Gallagher does not suffer any harm to his property rights by virtue of the Owners' alleged encroachment on the Town's property.

It is equally clear that encroachments are not interests that the zoning regulations are intended to protect. In Titanium Group, LLC v. Zoning Bd. of Appeals of Brockton, 17 LCR 67 (2009) (Grossman, J.), the plaintiff appealed from the grant of a special permit to operate a restaurant at the defendant's plaza. According to the court, the plaintiff's "primary concern relat[ed] to trespass," and its belief that the operation of a restaurant at that location would increase the number of people trespassing on the plaintiff's property. Id. at 73. The court held that "[w]hile plaintiff's concern is no doubt a sincere one, it will not, in the view of this court, suffice to provide the necessary standing. That is because the plaintiff does not allege an injury to ‘an interest the zoning scheme seeks to protect.'" Id. at 74, quoting Standerwick, 447 Mass. at 32. As that court also noted,

[t]hough the subject of zoning regulations is broad, it is not boundless. Having surveyed the relevant decisional law, this court concludes that vehicular trespass, as such, without any tangible, zoning-related harm caused thereby, is not cognizable under the Commonwealth's zoning laws, and, therefore, does not provide Titanium with standing. See Kane, 273 Mass. at 104 ("[i]t is only indirectly that [zoning laws] conserve private interests."). See also Standerwick, 447 Mass. at 31 (holding abutter injury must be "related to a cognizable interest protected by the applicable zoning law" to confer standing) (emphasis in original).

Titanium, 17 LCR 74 -75. The same is also true here.

CONCLUSION

Based on the foregoing, judgment will enter ALLOWING the Motion on the grounds that Mr. Gallagher is without standing to raise and, therefore, this court is without jurisdiction to address, the claims asserted in the Complaint.

SO ORDERED.