DEBORAH A. BUTLER v. DANFORTH GREEN, LLC and TOWN OF FRAMINGHAM, MASSACHUSETTS ZONING BOARD OF APPEALS, PHILIP R. OTTAVIANI, JR., Chair, SUSAN S. CRAIGHEAD, Vice-Chair, and STEPHEN E. MELTZER, Clerk.

On March 19, 2013, the Town of Framingham Zoning Board of Appeals (ZBA) issued its Notice of Decision and Decision (Decision) granting the application of Danforth Green, LLC (Danforth) for a series of variances for the property located off Danforth Street and Riverpath Drive in Framingham (Property). Danforth proposes to construct a 360-unit development at the Property under the Town’s Planned Unit Development zoning bylaw (PUD), with 180 for-sale units and 180 rental units (the Project). The Decision granted Danforth variances from the height limit and rental-unit limit in the PUD bylaw. The Decision was filed with the Town Clerk on March 29, 2013.

Deborah A. Butler timely filed a complaint challenging the Decision pursuant to G.L. c. 40A, § 17 on April 17, 2013. The case management conference was held on May 21, 2013. Danforth’s motion to transfer this case to the Permit Session was allowed on July 1, 2013. On June 24, 2013, the defendants filed Defendants’ Motion for Summary Judgment, along with the Memorandum of Law in Support of Defendants’ Motion for Summary Judgment, the Statement of Undisputed Facts in Support of Defendants’ Motion for Summary Judgment, and Defendants’ Rule Four Appendix in Support of Defendants’ Motion for Summary Judgment. On July 25, 2013, Ms. Butler filed her Memorandum of Law in Support of Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (Opposition), and on August 8, 2013, the defendants filed Defendants’ Reply in Support of Their Motion for Summary Judgment.

On August 6, 2013, the defendants filed Defendants’ Motion to Strike Certain Allegations and Evidence in Plaintiff’s Opposition to Motion for Summary Judgment (Motion to Strike). On August 8, 2013, Ms. Butler filed her Motion to Allow and to Extend the Time to File Response to Defendants’ Motion to Strike Certain Allegations and Evidence in Plaintiff’s Opposition to Motion for Summary Judgment (Motion to Extend Time) and her Memorandum of Law in Support of Motion to Allow and to Extend the Time to File Response to Defendants’ Motion to Strike Certain Allegations and Evidence in Plaintiff’s Opposition to Motion for Summary Judgment. I heard argument on the Defendants’ Motion for Summary Judgment on August 13, 2013 and took it under advisement. I also heard the Motion to Strike and the Motion to Extend Time that day, and allowed the Motion to Extend Time to give Ms. Butler until August 16, 2013 to file an opposition to the Motion to Strike. Ms. Butler filed her Memorandum of Law in Support of Plaintiff’s Opposition to Defendants’ Motion to Strike Certain Allegations and Evidence in Plaintiff’s Opposition to Motion for Summary Judgment on August 16, 2013.

Danforth and the ZBA have moved for summary judgment on the grounds that Ms. Butler lacks standing to appeal the Decision under G.L. c. 40A, § 17. Even with all inferences drawn in her favor, Ms. Butler has set forth no facts which would support the conclusion that she is a “person aggrieved” by the Decision. G.L. c. 40A, § 17. Therefore, for the reasons set forth below, the Motion to Strike is ALLOWED IN PART AND DENIED IN PART, and the Defendants’ Motion for Summary Judgment is ALLOWED.

Motion to Strike

Danforth and the ZBA have moved to strike various factual allegations in Ms. Butler’s Opposition and some of the documents she attached to the Opposition in support of those allegations. For the purposes of the Motion for Summary Judgment, I will consider Ms. Butler’s statements concerning her own actions, including her allegation that she paid her parents $500 for July rent for her use of the Butler Residence, that she met with the Town’s chief assessor to discuss a tax deferment for her parents, and that she attended ZBA hearings on Danforth’s variance request. I therefore deny that part of the Motion to Strike. I allow the Motion to Strike as follows. Ms. Butler describes a statement of Sue Bernstein regarding the effect of apartments on property taxes. That statement is hearsay, and is stricken. Ms. Butler attaches an email from Judith Rosenbaum to Philip Ottaviani, chair of the ZBA. That email is hearsay, and is stricken. Finally, Ms. Butler attaches a letter to the editor she wrote to the Metrowest Daily News. To the extent that letter states as a fact that Danforth’s variance will cause property taxes to rise, it is hearsay, and is stricken.

Motion for Summary Judgment

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of 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, I am 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 Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the “burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); see Regis Coll., 462 Mass. at 291-292.

Undisputed Facts

The court finds that the following facts are undisputed.

1. Deborah A. Butler resides at 6 Doyle Circle, Framingham, Massachusetts (the Butler Residence). The Butler Residence is in an R3 single-family residence district under the Town of Framingham Zoning Bylaw (Bylaw).

2. The Butler Residence is owned by Ms. Butler’s parents, John O. and Marjorie M. Butler. Ms. Butler resides at the Butler Residence with her parents and her brother, Bruce Butler.

3. Ms. Butler does not have any ownership interest in the Butler Residence. She does not have a written lease with her parents. Along with her siblings, Ms. Butler is a residual heir in her parents’ will, and would inherit an undivided interest in the Butler Residence if and when both parents are deceased.

4. Ms. Butler does not have any ownership or leasehold interest in any other property in the Town of Framingham. She has never paid property taxes for any property in the Town of Framingham, including the Butler Residence.

5. Danforth owns the Property, which is located off Danforth Street and Riverpath Drive in Framingham.

6. Under the Bylaw, the PUD is an overlay district allowing by special permit single-family and multi-family clustered residential developments on otherwise commercially or industrially zoned properties. The Property is located in the PUD overlay district.

7. In its Project, Danforth seeks to develop a 360-unit housing development on the Property under the PUD provisions of the Bylaw. Of those 360 units, 180 are to be rental units with the remaining units to be owner-occupied.

8. The PUD limits the height of buildings to three stories and the number of rental units to no more than 20% of the total number of units. Under the PUD, Danforth’s proposed development would be limited to 72 rental units. Danforth applied to the ZBA for a variance from these two requirements.

9. The ZBA issued the Decision, granting Danforth’s two requested variances and permitting Danforth to construct 180 rental units as part of its proposed development, on March 19, 2013. The Decision was filed with the Town Clerk on March 29, 2013.

10. The Property is more than three miles from the Butler Residence. The Butler Residence does not abut the Property, nor does it abut an abutter to the Property.

11. The Project, when built, will not affect anything that can be seen from the Butler Residence.

12. The Project will have no effect on noise at the Butler Residence.

13. The Project will have no impact on traffic at the Butler Residence.

14. The Project will not cause any shadows to fall on the Butler Residence.

15. The Project will have no impact on water or sewer service at the Butler Residence.

16. The Project will have no impact on parking at or near the Butler Residence.

17. The Project will have no impact on the ability of police or fire personnel to reach the Butler Residence in an emergency.

18. The Project and any construction on the Property will not reduce the property value of the Butler Residence.

19. Construction on the Property will have no impact on the Butler Residence.

Discussion

In order to have standing to challenge the issuance of the Decision granting Danforth’s variance, Ms. Butler must be a “person aggrieved” by the Decision. G.L. c. 40A, § 17. This standing requirement is a jurisdictional prerequisite to maintaining an action under § 17. Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 703 (1998); Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 131 (1992). 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). The Butler Residence, where Ms. Butler resides, does not abut the Property; rather, it is located more than three miles from the Property. Ms. Butler is not an abutter, an abutter to an abutter, nor a person entitled to any notice under § 11. She is not entitled to the presumption of standing, and must, as an essential element of her claim, establish that she is a person aggrieved. If Danforth Green and the ZBA show that Ms. Butler has no reasonable expectation of proving her standing, then summary judgment shall enter against her and in their favor. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35 (2006); Kourouvacilis, 410 Mass. at 716.

To qualify as a “person aggrieved,” G.L. c. 40A, § 17, Ms. Butler must establish that she will suffer some direct injury to a private right, private property interest, or private legal interest as a result of the Decision, and that the injured right or interest is one that the Zoning Enabling Act, G.L. c. 40A, or the Bylaw is intended to protect, either explicitly or implicitly. 81 Spooner Road, LLC, 461 Mass. at 700; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011); Standerwick, 447 Mass. at 27-28; see Ginther v. Commissioner of Ins., 427 Mass. 319 , 322 (1998). Ms. Butler has explicitly stated that she will not suffer many of the injuries that have in other cases formed the basis for standing. She will suffer no loss in property value. See Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 330 n.4 (1993). She will neither see nor hear the Project or its construction. See Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146-147 (2001). She will not suffer any shadows from it. She will not experience any problems with traffic or parking caused by the development. Marashlian, 421 Mass. at 722; Rinaldi v. Board of Appeal of Boston, 50 Mass. App. Ct. 657 , 660 (2001). She will suffer no impacts to her water or sewer service or to the ability of emergency responders to reach her. She will not be affected by the construction.

The only injury to a right or interest that Ms. Butler identifies as resulting from the Decision is her assertion that the Decision’s variance to allow more rental units than otherwise permitted under the PUD will result in higher property taxes on the Butler Residence. For the reasons set forth below, Ms. Butler has no reasonable expectation of proving that she will be harmed by an increase of property taxes resulting from the Project in a way that would confer standing upon her.

Ms. Butler has presented no evidence beyond her own belief that the Decision allowing Danforth Green to construct more rental units than it would otherwise be entitled to will lead to an increase in property taxes in the Town. [Note 1] This lack of evidence alone is sufficient to allow the motion. See Standerwick, 447 Mass. at 35; Kourouvacilis, 410 Mass. at 716. Even assuming arguendo that property taxes would increase as a result of the Project, this increase does not confer standing upon Ms. Butler. First, she does not have a private right, private property interest, or private legal interest that would be affected by a property tax increase. A property tax increase would affect the Butler Residence. Ms. Butler does not own the Butler Residence. She has no property interest in it at all. Her expected joint inheritance, based on her parents’ wills, is not a property interest that can be recognized under § 17. She has no written leasehold interest. The only evidence of an interest in the Butler Residence is her disputed statement that she paid $500 in rent to her parents for July 2013. It is undisputed that she did not previously pay her parents rent in exchange for living at the Butler Residence. There is no evidence on how this amount was arrived at, whether she will continue to pay her parents or if this is a one-time payment, and whether a property tax increase would affect the rental amount. The evidence is insufficient to establish that Ms. Butler has the sort of legal right to possess or control the Butler Residence that constitutes a property interest that can form the basis of standing. See Quimby v. Zoning Bd. of Appeals of Arlington, 19 Mass. App. Ct. 1005 , 1006 (1985); Minuteman Nat’l Park Ass’n, Inc. v. Town of Lincoln Zoning Bd. of Appeals, 20 LCR 402 , 404 (2012).

Assuming that the requirement to draw “all logically permissible inferences” from the facts in favor of the non-moving party, Willitts, 411 Mass. at 203, means that I must assume that Ms. Butler has a leasehold interest in the Butler Residence, she still does not have standing to challenge the Decision on the basis of the expected property tax increase. For a property tax increase to form a basis for standing, the interest in low or stable property taxes must be one that is protected by c. 40A or by the Bylaw. Kenner, 459 Mass. at 120-121. Property taxes are not an interest expressly protected by c. 40A. Rather, those interests include preventing congestion and overcrowding, conservation of health, protection of public safety, facilitating the provision of transportation, water and sewer, and open space, conservation of property values and the environment, and encouraging the appropriate use of land. See St. 1975, c. 808, § 2A (stating “objectives for which zoning might be established”). The Bylaw’s general statement of purpose provides that its purpose is to “protect and promote life, health, safety, morals convenience and general welfare of the townspeople,” and “to enhance the public welfare by increasing the supply of affordable housing in the Town.” Bylaw § I.B. The specific objectives to be served by the PUD are to preserve open space, encourage housing and development which is harmonious with the environment, encourage a variety of housing types, including affordable housing, allow a limited commercial area, provide recreational facilities, promote more efficient uses of land, and preserve and protect natural resources and historic sites and structures. Id. at §§ III.J.1.a-h. Nothing in the Bylaw’s statements of its general purpose or the purpose of the PUD refers to maintaining property taxes as an objective of the Bylaw. Nor can such a purpose be inferred from the c. 40A or the Bylaw. To the extent that c. 40A and the Bylaw serve their express or implied purpose to preserve or increase property values, those preserved or increased property values would result in increased property taxes. The interest in low or stable property taxes is not one that is protected by c. 40A or by the Bylaw.

Finally, even assuming that Ms. Butler could claim that a rise in property taxes is a harm falling within the scope of c. 40A or the Bylaw, she still would not have standing. To establish her standing, Ms. Butler must demonstrate that her claimed injury “is special and different from the injury the action will cause the community at large.” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005); Barvenik, 33 Mass. App. Ct. at 132. This she cannot do. Property taxes must, by law, be imposed upon all property owners based on the valuation of their property and the rate for their town or district. G.L. c. 59, § 38. It is unconstitutional to impose “taxes upon one class of persons or property at a different rate from that which is applied to other classes.” Bettigole v. Assessors of Springfield, 343 Mass. 223 , 230 (1961), quoting Opinion of the Justices, 332 Mass. 769 , 777 (1955). Even assuming the Decision resulted in an increase in property taxes in the Town, that increase would apply to all the Town’s landowners. Therefore, by definition, the tax increase on the Butler Residence would not injure Ms. Butler or her family in a way that is special and different from the rest of the Framingham community. Any other conclusion would mean that every property owner in a town would have standing to challenge a variance on the basis that it would increase their taxes, rendering the specified harm requirement for standing meaningless.

Ms. Butler has not presented any facts which would support the conclusion that she is a “person aggrieved” by the Decision. She has no reasonable expectation of proving her standing, an essential element of her claim under G.L. c. 40A, § 17. Summary judgment shall enter dismissing Ms. Butler’s appeal.

Conclusion

For the foregoing reasons, the Motion to Strike is ALLOWED IN PART AND DENIED IN PART, and the Motion for Summary Judgment is ALLOWED. Judgment shall enter dismissing this action with prejudice.

Judgment accordingly.