STEPHEN MURPHY and MICHELLE SIMPSON as TRUSTEES OF THE MURPHY FAMILY REALTY TRUST, CRAIG GIBSON, NANCY GIBSON, THEODORE F. VILLA, MARY A. HEALY-VILLA, CHARLES E. ROCHE and JEAN N. ROCHE v. RICHARD SAMPSON, JR., JOSHUA ALPER, DONNA PATALANO, NIGEL GALLAGHER, JOAN LANGSAM, as they constitute the WINCHESTER BOARD OF APPEALS and SUSAN CABANA

The Plaintiffs appeal, under G.L. c. 40A, § 17, from the June 18, 2010 decision of the Defendant Town of Winchester Zoning Board of Appeals (“ZBA”), which granted Defendant Susan Cabana a special permit to conduct a home occupation. The Plaintiffs, who are all “parties in interest” as defined in G.L. c. 40A, § 11, allege that they are aggrieved by the ZBA's decision, and pray for annulment of that decision on the grounds that it is arbitrary, capricious, erroneous, and exceeds the authority of the ZBA.

Cross motions for summary judgment were denied on October 18, 2011. A trial was held on March 6, 2012, at which time twenty-six (26) exhibits were entered into evidence, and seven (7) witnesses testified: Defendant Cabana, the Winchester Building Inspector, David Stirling (an architect retained by Defendant Cabana), and Plaintiffs Craig Gibson, Nancy Gibson, Stephen Murphy and Michelle Simpson. [Note 1]

FACTS

Defendant Susan Cabana resides in a single family residence located at 60 Wedgemere Avenue, Winchester, MA (the “Cabana Residence”). The Cabana Residence is in a Residential B (RDB) zoning district, in which the minimum lot size is 10,000 s. f. Ms. Cabana applied to the ZBA on April 1, 2010 for permission to conduct nutritional counseling and private yoga classes in the Cabana Residence.

Section 10.0 of the Winchester Zoning By-law (the “By-law”) defines “Home Occupation” as “[a]n occupation conducted in a dwelling unit, as set forth in Section 3.2.1.” Section 3.2.1 of the By-law, entitled “Home Occupation,” lists the following parameters for home occupations:

1. No person other than members of the family residing on the premises shall be engaged in such occupation.

2. The use of the dwelling unit for the home occupation shall be clearly incidental and subordinate to its use for residential purposes by its occupants, and not more than 25 percent of the floor area of the dwelling unit shall be used in the conduct of the home occupation.

3. There shall be no change in the outside appearance of the building or premises, or other visible evidence of the conduct of such home occupation other than one sign, not exceeding two (2) square feet in area, non-illuminated.

4. No home occupation shall be conducted in any accessory building.

5. There shall be no sales of products on the premises in connection with such home occupation.

6. No traffic shall be generated by such occupation in greater volumes than would normally be expected in a residential neighborhood, and any need for parking generated by the conduct of such home occupation shall be met off the street and other than in a required front yard. [Note 2]

7. No equipment or process shall be used in such home occupation which creates noise, vibration, glare, fumes, odors, or electrical interference detectable to the normal senses off the lot, if the occupation is conducted in a single-family residence, or outside the dwelling unit if conducted in other than a single-family residence. In the case of electrical interference, no equipment or process shall be used which creates visual or audible interference in any radio or television receivers off the premises, or cause fluctuations in line voltage off the premises.

8. Barber shop, beauty shop, and mortuary are not permitted.

By Special Permit Decision No. 3566, dated and filed with the Town Clerk on June 18, 2010 (the “Special Permit”), the ZBA granted Cabana a special permit to operate her proposed home occupation, subject to the following conditions:

1. No more than two (2) clients at any given time shall be permitted on the premises.

2. Clients may only be seen between the hours of 8:30 a.m. and 3:00 p.m. Monday through Friday.

3. No more than two (2) clients’ cars may be on the premises at any time and clients must park their vehicles in the driveway accessory to the dwelling unit.

4. This Special Permit shall lapse two (2) years from the date it is filed with the Winchester Town Clerk and it is certified that no appeal has been filed or a final decision has been rendered on any appeal of this decision. The Board of Appeals, in its discretion, may extend this Special Permit upon request of the Petitioner.

In granting the Special Permit, the ZBA made the following findings:

* Ms. Cabana “demonstrated that she would be engaged in the home occupation, no group classes would be held on Premises and that counseling and instruction would be on a one to one basis for the majority of the time with an occasional second client on the Premises;”

* “Accordingly, no traffic would be generated in greater volumes than normally expected in a residential area and all vehicles will be parked on the Premises and not within the required front yard;”

* Ms. Cabana “assured the Board that the home occupation would be conducted during the school day while her children were at school;” and

* “No physical changes in the outside appearances of the Premises were proposed.”

On the basis of these findings, the ZBA concluded that “the proposed nutritional counseling office and yoga instruction is a home occupation consistent with the applicable requirements of the By-law.”

Although Cabana had not, as of the time of trial, commenced operation of the approved home occupation, the evidence presented at trial demonstrates that Ms. Cabana intends to use an office near the kitchen in the main dwelling for nutritional counseling, and a room above the two-car garage attached to the main dwelling for yoga instruction (the “exercise room”). The only access to the exercise room is through the main dwelling itself. The finished floor area of the Cabana Residence, measured from the exterior faces of walls, excluding unfinished space, and mechanical closets, the garage and the screened porch, is 6,959 s. f. The office area to be used for nutritional counseling measures 108 s. f., and the exercise room with attached bathroom, measures 707 s. f. Even adding in the first floor 47 s. f. half-bath which will be available for use by the nutritional counseling clients, the total area to be devoted to the home occupation comprises an estimated 12.3 % of the total floor area of the Cabana residence, based upon the dimensions shown on the architectural drawings. [Note 3]

An existing paved, off-street parking area in front of the attached two-car garage is large enough to accommodate up to six (6) cars – more than sufficient to accommodate the required off-street parking of vehicles for the two clients permitted on the premises at the same time under the Special Permit conditions. There is no fencing, and no vegetative screening or other buffer, located on the premises of the Cabana Residence. However, an existing six-foot high fence and mature vegetation are maintained on the Gibson property, immediately adjacent to the parking area. [Note 4] Neither exterior signage, nor sale of products is proposed in relation to Ms. Cabana’s home occupation.

DISCUSSION

The Plaintiffs’ challenge the ZBA’s Special Permit decision on the grounds that it ignores certain of the By-law requirements applicable to home occupations, and does not make all of the findings required by By-law Section 9.4.2 for the grant of special permits. However, because I find that the Plaintiffs do not have standing under G.L. c. 40A, § 17 as aggrieved persons, their appeal of the ZBA’s Special Permit decision must be dismissed for lack of subject matter jurisdiction. Consequently, I do not reach the substance of the Plaintiffs’ appeal.

Only “persons aggrieved” by a decision of the special permit granting authority have standing to seek judicial review of a special permit decision under G.L. c. 40A, §17. See e.g. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Unless the plaintiff is aggrieved, this court cannot reach the substantive claims presented in the appeal. See Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005) (“Standing is the gateway through which one must pass en route to an inquiry on the merits.”). Where multiple plaintiffs are involved in a zoning appeal, only one needs to be a “person aggrieved” in order to sustain such appeal. See Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 620 (1993) (recognizing “that in a multiple party appeal it is only necessary to determine whether any one plaintiff is aggrieved in order to determine the standing issue”). However, in the instant case, the evidence does not support any of the Plaintiffs’ claims of aggrievement.

It is uncontested that the Plaintiffs are all “parties in interest” entitled, under G.L. c. 40A, § 11, to notice of the ZBA’s Special Permit proceedings. As such, they each enjoy a rebuttable presumption of standing. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 78 Mass. App. Ct. 223 , 241 (2010). A party in interest’s presumed standing recedes, however, once the defendant proffers evidence showing that the plaintiff’s claimed basis for standing is not well founded, or if the plaintiff fails to lay a factual foundation for the claimed “aggrievement.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35-36 (2006); See also Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 216 (2003) (holding that plaintiff’s failure at trial “to show that her own legal rights were likely to be affected” should have caused her presumptive standing to recede). Here, the Defendant successfully rebutted the Plaintiffs’ presumption of standing by eliciting testimony that reveals a complete lack of factual foundation for the Plaintiffs’ claims of aggrievement.

As a preliminary matter, Plaintiffs Theodore F. Villa, Mary A. Healy-Villa, Charles Roche and Jean N. Roche did not participate in the trial, and no evidence or argument was presented concerning the basis for their claims of aggrievement. The remaining Plaintiffs, Stephen Murphy, Michelle Simpson, Craig Gibson and Nancy Gibson, all testified at trial that they are aggrieved because operation of a home occupation at the Cabana Residence negatively affects their privacy and the peaceful enjoyment of their properties due to the activity and traffic generated. [Note 5] However, as discussed below, none of the Plaintiffs were able to quantify these negative effects. Nor could the Plaintiffs connect their claimed injuries to the conduct of the home occupation use authorized by the Special Permit.

Defendant Cabana’s testimony demonstrated that she is not presently operating the authorized home occupation, except for nutritional counseling conducted by telephone. She also demonstrated through testimony that the home occupation would be conducted within the limiting parameters set by the Special Permit, which prohibits her from having more than two clients on the premises at the same time, prohibits the client’s cars from being parked on the street, and limits hours of operation to weekdays, between 8:30 a.m. and 3:00 p.m. Together with certain statements of agreed facts concerning the unusual level of social activity which exists at the Cabana Residence and as to the ordinary level of residential traffic and parking activity occurring in the neighborhood, Ms. Cabana’s testimony concerning the nature and extent of the proposed and approved home occupation, and the Plaintiffs’ own testimony, were sufficient to show that the Plaintiffs’ claimed aggrievement lacks a factual foundation. Accordingly, the presumption of standing receded.

Once the presumption of standing receded, the burden was squarely on the Plaintiffs to “demonstrate, not merely speculate, that there has been some infringement of [their] legal rights,” Denneny, 59 Mass. App. Ct. at 211, and that their injuries are “special and different from the concerns of the rest of the community.” Standerwick, 447 Mass. at 33. Additionally, the Plaintiffs were also required to show that the injuries complained of were to “an interest the zoning scheme seeks to protect.” Id. at 32. As discussed below, the Plaintiffs were unable to sustain these burdens.

Loss of Privacy

The Plaintiffs claim that they are aggrieved by the Special Permit decision because the conduct of the home occupation will infringe upon their privacy. The Plaintiffs’ privacy concerns appear to be based primarily on the fact that the home occupation will bring strangers to the neighborhood who will be able to view the Plaintiffs from the windows of the second story exercise room, or from the parking area in front of the Cabana garage. For example, Dr. Stephen Murphy, whose house is directly across the street from the Cabana Residence, testified that Ms. Cabana’s conduct of a home occupation would affect him “because people that aren’t friends and that aren’t asked to come to the neighborhood specifically are coming and peering or potentially looking down from the second floor of one home down into the private homes of the adjacent neighbors.” TT page 115, lines 19-23. Michele Simpson, Dr. Murphy’s wife, testified that she has an unencumbered view into the Cabana driveway where her clients may be seen exiting and entering their vehicles. TT page 135, lines 1-5. She also believes the Special Permit results in an invasion of her privacy because she can see into the exercise room if the lights are on at night. TT page 136, lines 2-14. [Note 6] Ms. Simpson reported that one evening she photographed an unidentified person’s leg through the exercise room windows. [Note 7] TT page 139, lines 10-18; TT page 141, lines 7-10. She fears that if she can see into the exercise room, the Defendant’s clients could view her from the exercise room windows when she is standing in her own driveway, TT page 135-36, lines 20-14, or if she is standing in her son’s second floor bedroom. TT page 142, lines 11-18.

Both Craig Gibson and Nancy Gibson, who live directly next door to the Cabana Residence, testified that various areas inside their home (the master bedroom closet, the master bathroom, the first-floor study, the family room, and the kitchen) are in direct alignment with the windows in Ms. Cabana’s exercise room. TT page 147, lines 9-13; pages 166-67, lines 22-1. Mr. Gibson, however, admitted that he could only speculate whether or not he would suffer a loss of privacy as a result of the home occupation because he hasn’t actually seen the view from the windows of the 2nd floor exercise room. TT page 146, lines 8-13. Both of the Gibsons also expressed concerns about being viewed from the exercise room windows when they are outside in their yard. However, according to Ms. Cabana’s testimony, one would have to stand on something in order to look down into the Gibson’s yard from the windows in her exercise room. TT page 101, lines 14-21.

None of the Plaintiffs’ privacy concerns describe an infringement of any cognizable legal right, or any private interest protected by the By-law. To the extent that the Plaintiffs claim that their federal or state constitutional privacy rights are infringed, constitutional rights to privacy are generally found as a form of protection against state intrusion, such as in the context of searches and seizures, and are not property rights which may be asserted against other citizens. See DaRosa v. Ackerman, 19 LCR 593 , 595 n. 8 (2011). To the extent the Plaintiffs are relying on the statutory right of privacy found in G.L. c. 214, § 1B, such right only protects a person against “unreasonable, substantial or serious interference with his privacy.” See also Restatement (Second) of Torts § 652B (no liability for loss of privacy unless the interference with the plaintiff's seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object). But the loss of privacy complained of by the Plaintiffs does not rise to the level of tortious interference with their privacy.

Certainly, by choosing to live in a residentially-zoned neighborhood with quarter-acre lot density, the Plaintiffs necessarily have accepted the possibility that they may be exposed to the view of their neighbors or their neighbors’ invitees, either when they are standing outdoors, or when they are inside their residences but near a window without adequate coverings. More importantly, however, the Plaintiffs’ concerns about loss of privacy resulting from the operation of a home occupation in the Cabana Residence are purely speculative. Ms. Cabana has not yet commenced her proposed home occupation under the Special Permit and, therefore, any concerns about the effect of the home occupation on the Plaintiffs’ privacy are not based on any instances resulting from operation of the home occupation, or even instances where they have actually been deliberately observed from the Cabana Residence. [Note 8] Indeed, the Plaintiffs’ testimony demonstrates that their concerns about infringement of privacy rights arise from their own observations of unidentified individuals inside the Cabana Residence, rather than from any instances of being viewed by said persons while inside their own homes.

Finally, the Plaintiffs are unable to point to a single provision in the By-law which purports to protect privacy rights. This is not an instance where abutters may rely upon overcrowding issues in order to challenge new construction in an already dense district on privacy grounds. Compare 81 Spooner Road, LLC, 461 Mass. at 692. The second story addition in which the exercise room is located was built before Ms. Cabana sought permission to use it for private yoga instruction. And there is no evidence suggesting that the construction of the addition itself violates the density regulations in the By-law, such as building height, setback, lot coverage, or gross floor area limits.

Traffic Impacts on Quiet Enjoyment of Plaintiffs’ Properties

Somewhat related to the privacy concerns raised by the Plaintiffs, are their concerns that the home occupation-related traffic and parking will interfere with the quiet use and enjoyment of their properties. When demonstrated with the requisite quantity and quality of evidence, and shown to be individualized, traffic and parking impacts may suffice to confer standing under G.L. c. 40A, § 17. See Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682, n. 3 (2002) (traffic concerns are legitimately within the scope of zoning laws); Barvenik v. Bd. of Alderman of Newton, 33 Mass. App. Ct. 129 , 133 (1992) (stating that possible vehicular traffic increases are a legitimate zoning-related concern). Moreover, protection of neighborhood residents from negative traffic and off-street parking effects of special permit uses (such as home occupations) is addressed in the By-law. Section 9.4.2 of the By-law expressly provides that, when deciding whether to grant a special permit, the special permit granting authority shall consider “[t]raffic flow and safety, including parking and loading.” Section 3.2.1 (Home Occupations) also provides that “[n]o traffic shall be generated by such occupation in greater volumes than would normally be expected in a residential neighborhood, and any need for parking generated by the conduct of such home occupation shall be met off the street and other than in a required front yard.”

However, in order for traffic or parking-based injuries to furnish a plaintiff with the requisite standing for a zoning appeal, such injuries must be more than speculative. It is not enough to simply claim an increase in area traffic levels or on-street parking; rather, the Plaintiffs must “establish – by direct facts and not by speculative personal opinion” that the injury complained of is “special and different from the rest of the community.” Standerwick, 447 Mass. at 33 quoting Barvenik, 33 Mass. App. Ct. at 132. Here, the Plaintiffs’ claims are unsupported by evidence other than their own testimony as to their perceptions of increased commercial traffic in the neighborhood – testimony that is too generalized and too speculative to afford them standing.

The Gibsons testified that the quiet use and enjoyment of their property is affected by Cabana’s home occupation, in that they are unable to enjoy their patio and yard due to the noise and activity emanating from the Defendant’s “business.” TT pages 147-48, lines 14-13. The Gibsons’ patio is located on the other side of the fence from Cabana’s driveway, where her clients and delivery vehicles park. TT page 62, lines 4-17; page 63, lines 6-10; page 146, lines 1-17; pages 167-68, lines 21-1. However, I credit Ms. Cabana’s testimony that she has not been teaching any yoga classes at her home while this action has been pending. Instead, she has been teaching classes at an off-site yoga studio, and she has been giving nutritional counseling only over the telephone. TT page 46, lines 20-24; page 48, lines 16-22. Therefore, since there have been no yoga or nutritional counseling clients parking in the Cabana driveway near the Gibsons’ fence, the “business activity” of which the Gibsons complain is plainly not associated with the home occupation use authorized under the Special Permit. Instead, the Gibsons’ traffic and parking grievances appear to stem from their unhappiness with the height and bulk of the addition built over the Cabana garage in 2007, TT page 145, lines 13-24; from the activities relating to Ms. Cabana’s three school-aged children’s educational and social schedules, TT page 159, lines 9-23; and from the noise made by weekly household trash removal at the Cabana Residence, TT page 166, lines 6-16. [Note 9]

Dr. Murphy, whose driveway is directly opposite the Cabana driveway, testified that the quiet and peaceful enjoyment of his property is compromised by the potential for increased traffic generated over and above the general residential traffic in the neighborhood. TT pages 115-16, lines 24-2. But he also testified that he is opposed to any home occupation that would bring more than zero clients into the neighborhood. TT pages 128-29, lines 14-4. Ms. Simpson testified as to one instance of having to wait to pull out of her driveway while someone backed out of the Cabana driveway, but could not identify the particular driver of the vehicle backing out the Cabana driveway as being a client of Ms. Cabana’s. TT pages 136-37, lines 15-5.

Mr. Gibson testified, without specifics, that he has witnessed and experienced “a dramatic increase in traffic” since 2010. TT page 150, lines 12-17. Mrs. Gibson also testified that she has observed an increase in traffic on Wedgemere Ave. over the past two years, TT page 165, lines 8-10, and that the traffic and noise level associated with the Cabana Residence has affected the quiet enjoyment of her yard. TT pages 167-68, lines 14-1. However, none of the Plaintiffs’ testimony is based upon actual traffic conditions resulting from operation of a home occupation at the Cabana Residence. Nor could it be, since Cabana has not been conducting the home occupation approved under the Special Permit.

The Plaintiffs provided no expert testimony and no quantifiable evidence to demonstrate that the approved home occupation will, in fact, increase the neighborhood traffic or on-street parking significantly above what is normally expected. No base line vehicle trip information was provided, and there were no projections of traffic to be generated by the home occupation, based on recognized traffic models and taking into consideration the Special Permit conditions which limit the number of clients on the premises at one time, and limit the hours of operation.

Further, instead of demonstrating how increased traffic from the proposed home occupation will adversely affect their interests, the Plaintiffs’ testimony focused on how they are affected by the current level of traffic and activity generated by the Cabana Residence. For example, Dr. Murphy testified that he considers the social traffic generated by the Cabana Residence “to be abnormal.” TT page 132, lines 2-4. Mr. and Mrs. Gibson testified to “a lot of traffic that goes in and out” of 60 Wedgemere Ave. (the Cabana Residence). TT page 147, lines 14-22; page 167, lines 14-19. But Mr. Gibson also admitted that “there is a lot of activity generated just from the fact that there are three school-age kids who live in the Cabana household.” TT page 159, lines 19-23. Mrs. Gibson testified that she hears the twice-weekly trash pick-up at the Cabana Residence from inside her house. TT page 165-66, lines 22-11. She admitted, however, that she uses the same trash pick up service at her own house. TT page 176, lines 9-15.

The nature of the traffic and parking concerns expressed by the Plaintiffs are not inconsistent with the traffic and parking situation already existing in the neighborhood. Indeed, the parties have stipulated that the Cabana household already generates a significant amount of traffic relating to social activities - the Cabana children have friends dropped off to visit them a few times a week, and there are various social gatherings held at the Cabana Residence. The parties have also stipulated that both Ms. Cabana and the Plaintiffs regularly use various home services and contractors, and that all of the Wedgemere Avenue residences generate traffic associated with living in a residential neighborhood, including residents going to and from work, shopping, and errands; residents taking their children to school, sports practices and games, play dates, and birthday parties; family and other social gatherings - all of which involve some degree of traffic and parking activity in the neighborhood. At the end of the day, none of the traffic and parking grievances testified to by the Plaintiffs relate to the home occupation use authorized under the Special Permit, and therefore, provide no proper basis for the Plaintiffs’ standing.

Diminution of Property Values

Although some of the Plaintiffs also testified as to their own beliefs that Cabana’s home occupation would reduce the values of the homes in the neighborhood, the Plaintiffs failed to substantiate their personal opinions with credible evidence. The Supreme Judicial Court has recognized diminution of property value as a harm that may confer standing. See Tsagronis v. Bd. of Appeals of Wareham, 415 Mass. 329 , 330 n. 4 (1993). But a plaintiff must put forth credible evidence to substantiate his diminution of value allegations. See Butler, 63 Mass. App. Ct. at 441-442 (2005) (a plaintiff must put forth credible evidence, consisting of quantitative and qualitative components, to substantiate his allegations and prove standing) citing Marashlian, 421 Mass. at 721. Moreover, the claimed effect on property value “must be derivative of or related to cognizable interests protected by the applicable zoning scheme.” Standerwick, 447 Mass. at 31, 32. Here, the Plaintiffs’ claims of diminution of real estate value are neither supported by credible evidence, nor tethered to a zoning interest specified in the By-law.

Dr. Murphy testified that he is concerned with “the potential future impact on the value of the neighborhood.” [Emphasis added]. TT page 116, lines 10-11. Mrs. Gibson testified only that she thinks the home occupation devalues her property and the property of her neighbors. TT page 171, lines 12-13. When pressed on cross-examination, she was unable to provide any factual basis for her belief. Conjecture, personal opinion and hypothesis are not enough to show particularized injury stemming from a local zoning decision, however. The Plaintiffs presented no evidence whatsoever as to their current property values; nor did they present any expert testimony or other evidence demonstrating the effect on residential home values when a home occupation is located in a neighborhood. As their contentions are unsupported by “evidence [upon] which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s [Special Permit] decision,” I find that the Plaintiffs have also not established aggrievement on the basis of property value diminution.

CONCLUSION

For the foregoing reasons I find that none of the Plaintiffs have demonstrated the requisite standing to appeal the Special Permit decision. Accordingly, I do not reach the merits of their appeal, and judgment shall enter dismissing the Plaintiffs' Complaint.