SONYA MARASHLIAN & another [Note 1] v. ZONING BOARD OF APPEALS OF NEWBURYPORT & others. [Note 2]

LIACOS, C.J. The defendants Newburyport Redevelopment Authority (Authority) and Foster Properties, Ltd. (Foster), sought and received a special permit and two zoning variances from the zoning board of appeals of Newburyport (board), so as to construct a hotel in Newburyport's downtown

Page 720

waterfront area. The plaintiff abutters appealed from the board's decision under G. L. c. 40A, Section 17 (1994 ed.), [Note 3] to the Superior Court. After a contested evidentiary hearing, a Superior Court judge found that the abutters had standing to contest the board's action, but that the board did not exceed its authority in granting the requested special permit and variances. The Appeals Court, in a rescript opinion, affirmed the judgment based on its conclusion, contrary to the finding of the Superior Court judge, that the plaintiffs lacked standing under G. L. c. 40A, Section 17. Marashlian v. Zoning Bd. of Appeals of Newburyport, 37 Mass. App. Ct. 931, 933 (1994). We granted the plaintiffs' application for further appellate review. We affirm the judgment of the Superior Court. We state our reasons.

The city council of Newburyport adopted an urban renewal plan in 1965 to revitalize Newburyport's downtown business district, then in "substantial economic decline and disrepair." The last remaining parcel owned by the Authority and designated for urban renewal is the subject of this litigation, a vacant lot located on the Merrimack River. [Note 4] In 1987, the Authority authorized Foster to develop a hotel on the lot. The planned hotel was to include 123 guest rooms, a restaurant, a banquet room, and meeting rooms. In 1989, the Authority and Foster applied to the board for a special permit

Page 721

to allow hotel use on the lot, and two zoning variances. The variance applications sought permission to develop the project with less than the required 959 parking spaces and 120 feet of frontage. The plaintiffs own commercial and residential property adjacent to and directly across the street from the proposed hotel.

Only a "person aggrieved" may challenge a decision of a zoning board of appeals. G. L. c. 40A, Section 17. Watros v. Greater Lynn Mental Health & Retardation Ass'n, Inc., ante 106, 107 (1995). Green v. Board of Appeals of Provincetown, 404 Mass. 571, 572 (1989). A plaintiff is a "person aggrieved" if he suffers some infringement of his legal rights. Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430 (1949). The injury must be more than speculative, Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 335 (1993) (Abrams, J., dissenting), but the term "person aggrieved" should not be read narrowly. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957). Cummings v. City Council of Gloucester, 28 Mass. App. Ct. 345, 350 (1990). Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption they are "persons aggrieved." See Watros, supra at 111; Marotta, supra at 204. If standing is challenged, the jurisdictional question is decided on "all the evidence with no benefit to the plaintiffs from the presumption." Id. Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992). A review of standing based on "all the evidence" does not require that the factfinder ultimately find a plaintiff's allegations meritorious. To do so would be to deny standing, after the fact, to any unsuccessful plaintiff. Rather, the plaintiff must put forth credible evidence to substantiate his allegations. In this context, standing becomes, then, essentially a question of fact for the trial judge. See Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372, 377 (1988).

The plaintiffs here are abutters who received notice of the board's proceedings. Thus, they were rebuttably presumed to have standing. Each owns property across the street from the

Page 722

proposed hotel. The plaintiffs' properties are in a zoning district (downtown business) that is more restricted than the zoning district in which the hotel is proposed (waterfront mixed use). See Circle Lounge & Grille, Inc., supra at 432. The plaintiffs' standing was challenged and thus the jurisdictional question was decided on all the evidence.

The plaintiffs claim to fear increased traffic and decreased parking availability due to the defendants' development of the lot. Such concerns are legitimately within the scope of the zoning laws. Circle Lounge & Grille, Inc., supra at 427. Bedford v. Trustees of Boston Univ., supra at 374, 376-377. The judge found that the hotel project will result in a "minimal increase in traffic and a decrease in the number of currently available public parking spaces." This finding is supported by the record. There is also evidence to support the judge's findings that Marashlian's property was "within the scope of concern of the Zoning Enabling Act" and that Snow had an "interest in protecting his residential and retail tenants, the clients who visit his own place of business, his employees and himself from any increased traffic and congestion."

The findings of the judge should not be overturned unless "clearly erroneous." Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). On review of the record, we conclude that the judge's findings were not clearly erroneous. See Bedford, supra at 377 (abutter's concerns of increased pedestrian and vehicular traffic, loss of parking, and potential threats to pedestrian safety were sufficient to uphold abutter's standing even in the face of evidence that "proposed construction would have no adverse impact on the plaintiff"); Paulding v. Bruins, 18 Mass. App. Ct. 707, 709 (1984), quoting Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624, 629 (1977) (determination of "aggrieved" matter of degree calling for discretion rather than inflexible rule). The cases relied on by the judge are consistent with the principle that "person aggrieved" should not be construed narrowly. Marotta, supra at 204. Godfrey v. Building Comm'r of Boston, 263 Mass. 589, 591 (1928).

Page 723

The Appeals Court denied the plaintiffs standing to challenge the proposed hotel, stating that "[b]ased on the judge's findings, Snow and Marashlian have failed to make a `specific showing that the plaintiffs will either be injured or that such an injury would be special and different from that which others throughout the zone would experience. . .'" (emphasis added). Marashlian v. Zoning Bd. of Appeals of Newburyport, 37 Mass. App. Ct. 931, 933 (1994), quoting Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619, 623 (1993). As discussed, the plaintiffs must put forth credible evidence to substantiate claims of injury to their legal rights. The plaintiffs met that burden here. The record shows that both plaintiffs currently utilize public street parking to meet their business and personal needs. The judge found that traffic after the proposed hotel construction would increase, if minimally, and that some public parking spaces would be lost. These fears, based on all the evidence, are neither speculative nor too remote to make the plaintiffs persons "aggrieved." See Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 46 (1977). That the judge ultimately found the reduced number of spaces provided by the variance to be adequate does not defeat a claim of injury to legal rights of the type intended to be protected by the zoning enabling act. Such a finding goes to the plaintiffs' success on the merits and not to their ability to challenge acts of the board. [Note 5]

Page 724

The Appeals Court relied primarily on Barvenik v. Aldermen of Newton, supra at 131-133, to deny standing. [Note 6] That case, and several decided after it, seem to require that a plaintiff, in order to obtain standing, show a substantial likelihood of harm greater than that which could result from a use of the property permissible as of right. This line of cases appears to be a departure from those previously decided at the time of the judge's decision. We decline to adopt such a rule, except to the extent that it requires specific facts to establish perceptible harm. [Note 7] Although the magnitude of the threat of harm to a potential plaintiff in relation to the threat of harm from a use permissible as of right is a factor that may be considered, it is not dispositive of the standing issue. See Tsagronis, supra at 334-335 & n.1 (Abrams, J., dissenting) [Note 8] ; Circle Lounge & Grille, Inc., supra at 430.

Page 725

The Superior Court judge made extensive findings with regard to the merits of the plaintiffs' claims, all of which are supported by evidence in the record. These findings will not be disturbed unless clearly erroneous. Mass. R. Civ. P. 52 (a). See Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160-161 (1977) (phrase "clearly erroneous" defined). The judge's thirty-three page opinion shows a thorough analysis and discussion of all relevant issues in this case.

We discuss each issue here briefly. The judge ruled, inter alia, that the use of the locus for a hotel was protected as of right under G. L. c. 40A, Section 6 (1994 ed.). [Note 9] The locus was endorsed "approval not required" (ANR) in 1987, prior to the amendment of the zoning laws changing the district in which the lot is located from "downtown business" (in which a hotel is permitted as of right) to waterfront mixed-use (in which a special permit is required for hotel use). Thus, the "zoning freeze" was in effect for a three-year period, allowing development of the lot as a hotel as of right. No special permit was required for the locus to be used for a hotel as of right.

The judge found that the proposed hotel site is subject to unique conditions, not the result of the defendants' actions,

Page 726

which render it appropriate for a parking variance. [Note 10] He further found that as a result of these conditions, it would be "economically impractical" and not "economically feasible" to provide the required 959 parking spaces. These findings are supported by the record. The plaintiffs argue that no variance should be granted unless the property would be virtually unusable without a variance, and that the proposed hotel site could be used as a restaurant, retail space, or for parking. We reject the proposition that a variance is unwarranted if any other possible use can be made of a site. Cf. Rodenstein v. Board of Appeal of Boston, 337 Mass. 333, 336-337 (1958). The judge determined that such other uses, given the already existing number of establishments in the area, would not be economically feasible. His conclusion that literal enforcement of the zoning laws would create a substantial hardship, financial or otherwise, to the owners of the property is neither clearly erroneous nor does it constitute an error of law.

Finally, the judge ruled that no frontage variance was required because once Ferry Wharf Way is conveyed, as required by stipulation, it will constitute a street for purposes of meeting the frontage requirement. [Note 11] We believe that the

Page 727

street need not meet current planning board standards provided it is sufficiently usable to meet the definition of "street" in the Zoning Ordinance of Newburyport. [Note 12] There is evidence in the record that Ferry Wharf Way is of historic origin and is presently of suitable width and grade to be accessible by four-wheel vehicles as well as pedestrians, and public access will be forever protected under the stipulation. There was no error.

Concluding that the Superior Court judge's findings and rulings as to standing and to the merits of the plaintiffs' challenge were not in error, we affirm the decision of the Superior Court.

So ordered.

O'CONNOR, J. (dissenting, with whom Lynch and Greaney, JJ., join). The Superior Court judge "rule[d] that Christopher Snow and [Sonya] Marashlian have standing to maintain this action as `aggrieved persons' under G. L. c. 40A, Section 17." Relying on Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass. App. Ct. 274, 276 (1985), the judge reasoned that "[e]ven if Snow and Marashlian were to prove no more than the likelihood of fear of harm on the part of themselves, their visitors, clients and employees, they have standing to maintain this action." The judge's reasoning and ruling were incorrect. The judge should not have relied on Sherrill House, Inc., supra.

In Sherrill House, Inc., supra, the plaintiff operated a nursing home as a nonconforming use in a residential district. The Appeals Court held that the plaintiff lacked standing to challenge a decision of the Boston board of appeal

Page 728

granting to the owner of neighboring property a permit to change the use of that property from a hospital to a correctional facility. Id. at 275-279. The Appeals Court concluded that the plaintiff lacked standing to challenge the board's action because the plaintiff was "operating under a nonconforming use." Id. at 276. The court observed in dictum, however, that the plaintiff would have had standing to challenge the board's decision if the plaintiff had not been operating under a nonconforming use and had proved a likelihood that, following the conversion of the neighboring hospital to a correctional facility, the plaintiff's nursing home clients, visitors and employees would fear that they would become assault victims as a result of a correctional facility being located next door. Clearly, fear of that kind would tend to diminish the market value of the plaintiff's property. However, it does not follow that, to have standing to challenge the action of the defendant board of appeals in this case, the plaintiffs needed only to prove the likelihood that, in advance of the zoning board's decision being implemented, the plaintiffs, their clients, visitors or employees feared that the decision would result in an increase in traffic or a decrease in parking spaces.

In a single proceeding, the judge in the Superior Court heard evidence that bore not only on the issue of standing, but also on the substantive issues relating to whether the zoning board of appeals of Newburyport had exceeded its authority in granting a special permit and two variances to the Newburyport Redevelopment Authority and Foster Properties, Ltd. The judge concluded that the plaintiffs had standing to challenge the zoning board's decision, but that the decision was lawful. The court affirms that decision. In my view, the plaintiffs did not have standing and therefore the court did not have jurisdiction to review the board's decision. Riley v. Janco Cent., Inc., 38 Mass. App. Ct. 984, 985 (1995). I would vacate the judgment and dismiss the action. [Note Dissent-1]

Page 729

As the court says, ante at 721, "Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption they are `persons aggrieved.' [Watros v. Greater Lynn Mental Health & Retardation Ass'n, ante 106, 111 (1995)]." When a defendant challenges the plaintiff's standing and supports that challenge with evidence of lack of aggrievement, the jurisdictional issue must be decided on the basis of the evidence without reference to the presumption. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957). Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992). Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372, 376 (1988). Sherrill House, Inc. v. Board of Appeal of Boston, supra at 275.

In this case, the challenge to the plaintiffs' presumed aggrievement (and therefore standing) was supported by evidence of nonaggrievement. The presumption of standing therefore disappeared and the plaintiffs had the burden to prove to the judge the necessary facts to establish it. Barvenik v. Aldermen of Newton, supra at 131-132. The plaintiffs failed to carry that burden because, although the judge erroneously concluded that the plaintiffs had standing, his findings established the opposite.

The judge made the following relevant findings, all of which were warranted by the evidence: (1) "The number of parking spaces to be provided for the Project will be sufficient to meet the parking demands generated by the hotel. Therefore, the Project will not add to any existing onstreet parking congestion in the area"; (2) "[T]he supply of public parking spaces in the area will be adequate to meet the demand"; (3) "With respect to traffic, the [P]roject is expected to minimally increase traffic volumes and . . . site-generated traffic will not have a major impact on area traffic patterns. Any adverse traffic impacts will be controlled by implementing certain mitigation measures." The judge's further finding,

Page 730

to which reference is made in the court's opinion, ante at 723, that the project will result in a decrease in the number of currently available public parking spaces (referred to in the court's opinion, ante at n.5, as "the tangible loss of parking spaces") is of no consequence in view of his findings numbered (1) and (2) above. Decrease in a surplus of available parking spaces, leaving a supply adequate to meet the demand, is not the type of harm G. L. c. 40A is designed to protect against. The same may be said of a minimal increase in traffic in a business area which "will be controlled by implementing certain mitigation measures."

Apart from evidence concerning traffic and parking, there was no evidence, and there were no findings, suggesting that the zoning board's actions are likely to result in harm to the plaintiffs' legally protected interests. Consequently, in my view, the Appeals Court correctly concluded, contrary to the legal conclusion reached by the trial judge (although the aforementioned findings were warranted), and by this court on appeal, that the plaintiffs lacked standing to bring this action. The Superior Court, therefore, lacked jurisdiction to review the zoning board's actions. The judgment should be vacated and the action should be dismissed. See Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 433 (1949).