MISC 07-361639

January 9, 2013

Sands, J.


Plaintiffs filed their unverified Complaint on December 5, 2007, appealing a decision of Defendant Sutton Zoning Board of Appeals (“ZBA”) which granted a dimensional variance (the “Variance”) to Defendants Roseanne LaBarre (“LaBarre”) and John Scott (together, “LaBarre/Scott”). A case management conference was held on February 26, 2008. LaBarre/Scott filed their Answer on March 5, 2008.

On July 17, 2008, LaBarre/Scott filed their Motion for Summary Judgment, together with supporting memorandum and Appendix, including Affidavits of Maria Hopkins (licensed appraiser) and Roseanne LaBarre (first), and portions of depositions of Robert E. Marhefka and Roseanne LaBarre. The ZBA filed its Motion for Summary Judgment on July 28, 2008, relying on LaBarre/Scott’s memorandum. On August 14, 2008, Plaintiffs filed their Cross-Motion for Summary Judgment and Opposition to LaBarre/Scott’s motion and the ZBA’s motion, together with supporting brief and Appendix, including Affidavits of Robert E. Marhefka (first) and Robert D. O’Neil, Jr. (professional land surveyor), appraisal of Robert Tolland, and a portion of the deposition of Robert E. Marhefka. LaBarre/Scott filed their Opposition to Plaintiffs’ motion and their Reply to Plaintiffs’ Opposition on September 17, 2008, together with Appendix, including the Affidavit of Roseanne LaBarre (second). On September 25, 2008, Plaintiffs filed their Reply Brief to LaBarre/Scott’s Opposition, together with Affidavits of Robert E. Marhefka (second). On the same day, Plaintiffs filed their Reply to Plaintiffs’ Statement of Facts. A hearing was held on all motions on October 6, 2008, and on November 12, 2009, this court issued a decision (“Decision 1”) and Judgment (the “Judgment”), in which it found that Plaintiffs’ allegation of harm to their view of the Pond was not a protected interest under the Town of Sutton Zoning Bylaw (the “Bylaw”), and because the alleged harm of diminution of value was directly tied to views, the allegation of diminution of value was inadequate to confer standing upon Plaintiffs. Plaintiffs appealed Decision 1, and by decision of the Massachusetts Appeals Court dated May 13, 2011, the Appeals Court reversed the Judgment (the “Appeals Court Decision”), finding that

The view injury the plaintiffs have alleged relates to protected density and dimensional interests. The by-law identifies open space and describes “yard” in such a manner as to make protection of view an implicit interest protected by the density and dimensional provisions of the by-law . . . The disputed degree of the injury renders this case inappropriate for summary judgment. Because the degree of the quantity and quality of the view impairment due to the increased density was not decided by the Land Court judge, we decline to determine whether the plaintiffs have presented sufficient credible evidence of a particularized injury to warrant standing. The Land Court judge must determine, in the first instance, whether the plaintiffs have met their burden to submit credible evidence of the alleged injury . . . The matter is remanded to the Land Court for further proceedings consistent with this opinion. Marhefka v. Zoning Bd. of Appeals, 79 Mass. App. Ct. 515 , 520 (2011)

A pre-trial conference was held on May 21, 2012. A site view and the first day of trial at the Worcester Superior Court were held on July 25, 2012. The second day of trial was held on July 26, 2012, at the Land Court in Boston. At the conclusion of trial, LaBarre/Scott moved for a directed verdict based on the fact that Plaintiffs presented no evidence relating to the issue of density. At that time, this court declined to act on said motion before it could review the trial record. LaBarre/Scott filed their Post-Trial Brief on October 23, 2012. Plaintiffs filed their Post-Trial Brief on October 24, 2012, and at that time the matter was taken under advisement. On January 6, 2013, after notifying the parties, the court took a second site view.

Testimony for Plaintiffs was given by Andrew Liston (“Liston”) (surveyor), Robert Tolland (“Tolland”) (appraiser), and Robert Marhefka (“Marhefka”) (Plaintiff). Testimony for LaBarre/Scott was given by John Andrews (“Andrews”) (surveyor), Maria Hopkins (“Hopkins”) (appraiser), and LaBarre (Defendant). There were 105 exhibits submitted into evidence, some in multiple counterparts. A decision of today’s date (“Decision 2”) has been issued.

In accordance with Decision 2, it is hereby:

ORDERED and ADJUDGED that Plaintiffs do not have standing to challenge the Variance based on density. [Note 1]

So ordered.

By the court. (Sands, J.)


[Note 1] Plaintiffs’ alleged harms of view and diminution in value were tied to density concerns and, based on the foregoing finding, this court need not address the issue of view or diminution in value. However, based on the Appeals Court’s remand to this court for full findings on the standing issue, I will address all of Plaintiffs’ alleged harms. The next issue was for this court to determine whether the diminished ability to “see through open space” as a result of the Garage is more than “de minimis.” See Marhefka, supra, at 520; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 123 (2011). In this regard, LaBarre/Scott offered testimony that the diminished view of Ramshorn Pond (the “Pond”) from Plaintiffs’ property located at 19 Pine Point Drive, Sutton, MA (“Plaintiff Property”) (caused by the construction of a garage (the “Garage”) on LaBarre/Scotts’ property located at 20 Pine Point Drive, Sutton, MA (“Locus”)) will be de minimis. Plaintiffs countered, and offered the testimony of Liston to prove that they will lose eighty per cent (80%) of their view of the Pond over the area where LaBarre/Scott park their vehicles (the “Parking Area”). Plaintiffs put a great deal of emphasis on their highly valued view of the Pond, over the proposed Garage, from their dining room and screened-in porch.

LaBarre rightfully pointed out that Plaintiffs enjoy a panoramic view of the Pond from their property; a view that includes much more than Plaintiffs’ view of the Pond over the Parking Area. LaBarre/Scott presented photographs that tend to show that Plaintiffs enjoy a panoramic view of the Pond, especially in a westerly direction and over another neighbor's property. LaBarre testified that Plaintiffs will lose 2% of their panoramic view of the Pond as a result of the Garage. Plaintiffs offered the testimony of Liston, who was qualified as an expert surveyor. Liston credibly testified that Plaintiffs will lose approximately eighty per cent (80%) of their view of the Pond over the Parking Area (not 80% of the panoramic view) if the Garage is constructed. In support of this conclusion, Liston superimposed a hypothetical structure, similar in dimensions to the Garage, over several pictures depicting views of the Pond from the dining room and screened-in porch in Plaintiffs’ house.

With due regard to the quantity and quality of evidence presented, it would appear that Plaintiffs’ view of the Pond over the Parking Area will be diminished as a result of the Garage. It is also quite clear, however, that Plaintiffs enjoy a panoramic view of the Pond, with the view over the Parking Area only a portion of Plaintiffs’ total view. It cannot be disputed in good faith that the harm of diminished view from Plaintiff Property (e.g. Plaintiffs’ dining room and screened-in porch) is particularized to Plaintiffs. The pitched roof line of the Garage, however, which Plaintiffs allege will block their view of the Pond, is outside of the setback area. The roof line and the height of the Garage are in full compliance with the Bylaw. As such, the minor setback encroachment giving rise to the Variance does not actually cause Plaintiffs’ loss of view. As discussed in Decision 2, if the small corner of the Garage were removed, there would be no need for the Variance for front yard setback.

Separate and distinct from view, Plaintiffs allege the Garage will cause a depreciation in the value of Plaintiff Property. “Diminution in the value of real estate is a sufficient basis for standing only where it is ‘derivative of or related to cognizable interests protected by the applicable zoning scheme.’” Kenner, supra, at 123, citing Standerwick, supra, at 31-32. Plaintiffs’ appraiser, Tolland, testified that Plaintiffs’ loss of view will result in a $50,000 diminution in value of Plaintiff Property. LaBarre/Scott contend that Tolland’s testimony is not credible because Tolland’s analysis improperly compared the value of a home with a view of the water to a home with no view of the water, rather than a partially obstructed view. Hopkins testified that it is nearly impossible to discount the value of a home with a partially obstructed view, thus Tollands’ testimony in this regard is speculative and mere conjecture. Moreover, Hopkins criticized Tolland’s appraisal procedure because he only used three comparable sales in his analysis (to determine the value of Plaintiff Property with the Garage on Locus), too few comparables according to Hopkins.

I find Tolland’s appraisal and corresponding testimony to be speculative at best. First, Tolland admitted that it was very difficult to find a pool of properties as comparable to Locus. Tolland stated, “I believe I found two that were even remotely comparable.” Tolland therefore admitted that the properties he used as comparisons were far from ideal. More to the point, a third comparable property, used to establish the value of Plaintiff Property without the Garage, was located outside of Sutton. Finally, aside from the fact that Tolland only examined three comparable properties to estimate the value of Plaintiff Property with the Garage, those three properties were not adequately comparable to Plaintiff Property. Two out of the three had no water view at all, and none of the three comparables had a dock or frontage on water. If the Garage is constructed, Plaintiff Property will still have some view of the Pond and Plaintiffs will still have a dock and frontage along the Pond. As a result of the foregoing, it does not appear that Plaintiffs can show a diminution in value of Plaintiff Property as a result of the Variance.