Barvenik v. Board of Aldermen of Newton

• Decision Date: 03 August 1992
• Docket Number: No. 90-P-503,90-P-503
• Citation: 597 N.E.2d 48,33 Mass.App.Ct. 129
• Parties: Matthew BARVENIK, et al. v. BOARD OF ALDERMEN OF NEWTON et al. 1
• Court: Appeals Court of Massachusetts

Page 48

597 N.E.2d 48

33 Mass.App.Ct. 129

Matthew BARVENIK, et al. v. BOARD OF ALDERMEN OF NEWTON et al. ¹

No. 90-P-503.

Appeals Court of Massachusetts Suffolk.

Argued Dec. 19, 1991.

Decided Aug. 3, 1992.

Robert Cohen and John M. Babington, Wellesley, for plaintiffs.

Daniel M. Funk, City Sol. & Michael D. Baseman, Asst. City Sol., for Bd. of Aldermen of Newton.

David S. Weiss and Eric L. Yaffe, Boston, for The Green Co., Inc.

Before ARMSTRONG, PERRETTA and LAURENCE, JJ.

LAURENCE, Justice.

Various Newton property owners living near the site of the former St. Sebastian's School, now owned by The Green Company, Inc. (Green), filed a complaint in the Land Court, pursuant to G.L. c. 40A, § 17, seeking to annul a special permit granted to Green by the board of aldermen of the city of Newton. All of the plaintiffs reside in a Single Residence 2 district in Newton adjacent to the locus at issue in this case; the locus is in a Multi-Residence 3 (two-family residence) district. ²

The special permit authorized Green to construct 114 housing units on the Newton portion of the site, primarily for persons fifty-five years of age or older. ³ Following a seven-day trial, a Land Court judge rejected all of the substantive arguments advanced by the plaintiffs against the validity of the board's action and affirmed the board's order. Although we are satisfied that the judge properly affirmed the board's grant of the special permit to Green on the grounds stated, we need not reach the merits of the appeal, because the plaintiffs failed to show they were aggrieved persons with standing to maintain the action under G.L. c. 40A, § 17. ⁴

A small but reasonably coherent body of case law has developed explicating the standards for determining aggrievement under G.L. c. 40A, § 17. ⁵ The most significant of the decisions are Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 433, 86 N.E.2d 920 (1949); Marotta v. Board of Appeals of Revere, 336 Mass. 199, 202-204, 143 N.E.2d 270 (1957); Waltham Motor Inn, Inc. v. LaCava, 3 Mass.App.Ct. 210, 213-217, 326 N.E.2d 348 (1975); Rafferty v. Sancta Maria Hosp., 5 Mass.App.Ct. 624, 626, 629-630, 367 N.E.2d 856 (1977); Paulding v. Bruins, 18 Mass.App.Ct. 707, 709, 470 N.E.2d 398 (1984); Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass.App.Ct. 274, 473 N.E.2d 716 (1985); Bedford v. Trustees of Boston Univ., 25 Mass.App.Ct. 372, 376-378, 518 N.E.2d 874 (1988); and Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 492-495, 540 N.E.2d 182 (1989).

From these decisions we derive a number of controlling principles and guidelines for § 17 standing. "Aggrieved person" status is a jurisdictional prerequisite. Unless brought by a municipal officer or board, a court has jurisdiction to consider a zoning appeal only if it is taken by an aggrieved person. ⁶ Although abutters and abutters to abutters enjoy a presumption of aggrieved person status, the presumption is rebuttable. Once a defendant in a § 17 appeal challenges the plaintiff's standing and offers evidence to support the challenge--as the defendants did here--the jurisdictional issue is to be decided on the basis of the evidence with no benefit to the plaintiff from the presumption. ⁷ The plaintiff then has the burden of proof on the issue of standing. ⁸ Satisfaction of that burden requires proof that the plaintiff is one of the limited class of individuals who are entitled to challenge a zoning board's exercise of discretion.

To qualify for that limited class, a plaintiff must establish--by direct facts and not by speculative personal opinion--that his injury is special and different from the concerns of the rest of the community. He must show that his legal rights have been, or likely will be, infringed or his property interests adversely affected. ⁹ Subjective and unspecific fears about the possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close neighborhood feeling, or the loss of open or natural space are all considered insufficient bases for aggrievement under Massachusetts law.

Even when positing legitimate zoning-related concerns, including possible vehicular traffic increases, anticipated parking problems, and the potential for litter, a plaintiff must nonetheless offer more than conjecture and hypothesis. He must provide specific evidence demonstrating a reasonable likelihood that the granting of a special permit will result, if not in a diminution in the value of his property, at least in his property or legal rights being more adversely affected by the activity authorized by the permit than (a) they are by present uses and activities or (b) they would be as a result of the uses and activities permitted as of right on the defendant's locus. Otherwise, a would-be plaintiff lacks the requisite standing and cannot maintain an appeal under G.L. c. 40A, § 17, even if his property abuts or is very near the property subject to the permit. ¹⁰

The plaintiffs here--having lost their presumptive standing following the defendants' evidentiary challenge--fell far short of making an adequate showing that they were aggrieved in the sense required by the controlling authorities. Their complaint merely asserted that they either were abutters or abutters to abutters or were otherwise "aggrieved persons within the meaning of" G.L. c. 40A, § 17; it recited no facts reflecting legal aggrievement. Their objections to the board's action were not grounded in concern for any actual or potential decrease in the value of their properties caused by the elderly housing project to be built under the special permit--indeed, none of the plaintiffs even mentioned this factor in their testimony. Contrast Tsagronis v. Board of Appeals of Wareham, 33 Mass.App.Ct. 55, 596 N.E.2d 369 (1992). Instead, as the judge noted, the plaintiffs' opposition had roots "in more personal reasons." ¹¹

The judge properly dismissed the plaintiffs' "personal dislike of the architecture, distress at [assumed] interference with their view or unhappiness at changes in the existing vegetation on the [Green] site" as angst insufficient to "rise to the level of a valid reason for the court to weigh in considering the validity of the board's action." Such matters are ineffective to sustain standing. See Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. at 493, 540 N.E.2d 182. See also Baxter v. Board of Appeals of Barnstable, 29 Mass.App.Ct. 993, 995, 562 N.E.2d 841 (1990).

The judge found, however, that certain of the concerns of the five abutters and abutters to abutters were "legitimate" and "affected them more particularly than other residents of Newton." These concerns arose out of their personal belief that the Green project would cause more traffic, which they felt was already heavy, than Green's expert witnesses had calculated; that the area's habitually low water pressure, which had been inadequate during a fire several years before at the former school, might be lowered by the needs of the project; and, with respect to one abutter, that the drainage from the site, which had always caused him water problems and resulted in pooling in his backyard all year round, might be exacerbated. The judge concluded that such impacts entitled those five plaintiffs to maintain the action, but she did not discretely analyze the expressed concerns about the project, identify any evidence demonstrating their likelihood, make specific findings as to their sufficiency as impacts supportive of standing, or discuss the controlling case authorities under § 17. Indeed, her actual findings regarding the anticipated impacts of the project undercut the conclusion that the plaintiffs had standing.

With respect to the most persistently reiterated concern, traffic, the judge found that traffic increases from the project would be minimal. The plaintiffs' testimony regarding traffic (as well as in regard to water pressure and drainage) was based solely on their conjecture and suspicions. In direct contradiction to the plaintiffs' uncorroborated speculations, the judge stressed that the defendants' expert (and uncontroverted) testimony on the subject of traffic showed "that the traffic generated by the proposed development would be less than [from] other possible uses due in part to the age of the future occupants." ¹² Under these circumstances, the plaintiffs' assertions regarding potential traffic problems were like those advanced and held inadequate in Harvard Square Defense Fund, Inc. v. Planning Board of Cambridge, 27 Mass.App.Ct. at 493-495, 540 N.E.2d 182. Here, as there, the plaintiffs failed to provide "direct facts to show that users of the buildings constructed under the special permits will generate traffic, or use parking spaces, in excess of what occupants and visitors of a building constructed under a permitted use, not subject to special conditions, would generate. Put another way, the plaintiffs ... show only that any 'increase in traffic [and parking] is problematical and might be little, if any, greater than that from [a use] which could lawfully be erected on the ... land [without the need for a special permit].' Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430 (1949)." Id. 27 Mass.App.Ct. at 494-495, 540 N.E.2d 182.

The other ostensible concerns thought adequate for standing purposes by the judge--water pressure and drainage--suffered from the same flaws as the traffic issue and do not withstand the Harvard Square Defense Fund analysis. The plaintiffs' anxieties concerning the adequacy of water pressure if the Green project were constructed were, "because of the special conditions annexed to the permit[ ]," ... "at best speculative." 27 Mass.App.Ct. at 494, 540 N.E.2d 182. The Board's special permit was made subject to numerous conditions, quoted by the judge in their entirety,...