Brian Kenner & Another 1 v. Zoning Bd. of Appeals of Chatham & Others.2

• Decision Date: 11 March 2011
• Docket Number: SJC–10740.
• Citation: 944 N.E.2d 163,459 Mass. 115
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Brian KENNER & another 1v.ZONING BOARD OF APPEALS OF CHATHAM & others.2

459 Mass. 115

944 N.E.2d 163

Brian KENNER & another 1

v.ZONING BOARD OF APPEALS OF CHATHAM & others.2

SJC–10740.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 7, 2010.Decided March 11, 2011.

Daniel P. Dain for zoning board of appeals of Chatham.William F. Riley, Chatham, for Louis Hieb & another.Michael D. Ford, West Harwich (Jeffrey M. Ford with him) for the plaintiffs.Present: IRELAND, SPINA, COWIN, CORDY, & GANTS, JJ.SPINA, J.

In June, 2006, the zoning board of appeals of Chatham (board) granted a special permit to Louis and Ellen Hieb (Hiebs) for the demolition, reconstruction, and expansion of their house located at 25 Chatharbor Lane in South Chatham Hieb property). The plaintiffs, Brian and Carol Kenner (Kenners), owners of real property at 18 Chatharbor Lane (Kenner property), challenged the issuance of the permit by filing a complaint in the Land Court against the board and the Hiebs. In their answer, the Hiebs requested that the complaint be dismissed because the Kenners were not “aggrieved” parties within the meaning of G.L. c. 40A, § 17, and, therefore, had no standing to bring their action. After a trial, which included a view of the properties, a judge concluded that the Kenners lacked standing to challenge the issuance of the permit, and, even if they did have standing, they failed to show that the board had acted improperly. Judgment entered for the Hiebs. The Appeals Court reversed in an unpublished memorandum and order issued pursuant to its rule 1:28. See Kenner v. Zoning Bd. of Appeals of Chatham, 76 Mass.App.Ct. 1110, 2010 WL 335577 (2010). We granted the joint application for further appellate review filed by the Hiebs and the board. We conclude that the Kenners lacked standing to obtain judicial review of the board's decision and, accordingly, need not reach the merits of this case.

1. Background. The Hieb property, which abuts the Atlantic Ocean, consists of 13,237 square feet, most of which is nonbuildable marshland. A single-family house is located on a portion of the approximately 2,200 square feet of the property that is suitable for building. The Kenner property lies to the north of the Hieb property, directly across Chatharbor Lane, such that the Hieb property is located between the Kenner property and the Atlantic Ocean. On the Kenner property is a single-family home. The special permit sought and secured by the Hiebs allows them to raze their existing house and construct in the same footprint a new house that will be seven feet taller than their existing one.

In considering the Kenners' challenge to the issuance of the special permit, the judge stated that because the Kenners were abutters to the Hieb property, they were presumed to be “aggrieved persons” with standing to seek judicial review of the board's decision. However, the judge continued, once the Hiebs challenged the Kenners' standing, the Kenners were required to present credible evidence to substantiate their particularized claims of harm to their legal rights. This, in the opinion of the judge, the Kenners failed to do. The judge stated that the Kenners' contentions that the increased height of the Hiebs' new house would block light and ocean breezes to the Kenner property and would cause traffic problems in the neighborhood were either generalized concerns, not particular to the Kenners, or were speculative. As to the Kenners' contention that the increased height of the Hiebs' new house would obstruct the Kenners' view of the ocean, the judge agreed that this constituted a claim of individualized harm and stated that § V.B.5 of the Protective By–Law of the Town of Chatham (2007) required the board to consider, when deciding whether to grant a special permit, the impact of a proposed structure on views, vistas, and streetscapes. However, the judge concluded that any impact of the increased height of the Hiebs' new house on the Kenners' view of the ocean was de minimis and, as such, was not sufficient to confer standing on the Kenners. Finally, the judge stated that the Kenners' evidence pertaining to a purported diminution in the value of their property as a consequence of the Hiebs' new house was unsound and speculative, particularly where their alleged loss of view was insignificant.

2. Standing based on obstruction of ocean view. The Kenners first contend that the Hiebs' new house, which will be seven feet taller than their existing house, will obstruct the Kenners' view of the ocean. They assert that this negative impact on their property constitutes a particularized harm, separate from the general concerns of the neighborhood as a whole. As such, the Kenners continue, they are “aggrieved persons” and, therefore, have standing to challenge the board's issuance of a special permit to the Hiebs. We disagree.

General Laws c. 40A, § 17, states that “[a]ny person aggrieved by a decision of the [zoning] board of appeals ... may appeal to the land court department ... by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk.” A “person aggrieved” is one who “suffers some infringement of his legal rights.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369 (1996), citing Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430, 86 N.E.2d 920 (1949). As pertinent to the circumstances here, landowners directly across the street from a property on which changes are proposed enjoy a rebuttable presumption that they are persons aggrieved. See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra at 721–722, 660 N.E.2d 369. See also G.L. c. 40A, § 11 (defining “parties in interest” entitled to notice of public hearing under zoning law as including “owners of land directly opposite [subject property] on any public or private street”).

If standing is challenged, and evidence is offered in support of such challenge, the jurisdictional question will be decided on “all the evidence with no benefit to the plaintiffs from the presumption” of aggrievement. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270 (1957). See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra at 721, 660 N.E.2d 369. See also Watros v. Greater Lynn Mental Health & Retardation Ass'n, 421 Mass. 106, 111, 653 N.E.2d 589 (1995) (where no evidence presented to rebut plaintiffs' presumption of standing, plaintiffs entitled to rely entirely on presumed status as aggrieved parties to challenge grant of special permit). A party challenging the presumption of aggrievement “must offer evidence ‘warranting a finding contrary to the presumed fact.’ ” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 34, 849 N.E.2d 197 (2006), quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 258, 797 N.E.2d 893 (2003). “Once the presumption is rebutted, the burden rests with the plaintiff to prove standing [i.e., aggrievement], which requires that the plaintiff ‘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.’ ” Standerwick v. Zoning Bd. of Appeals of Andover, supra at 33, 849 N.E.2d 197, quoting Barvenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 132, 597 N.E.2d 48 (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” (emphasis added). Marashlian v. Zoning Bd. of Appeals of Newburyport, supra. See Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81, 91, 876 N.E.2d 820 (2007); Hoffman v. Board of Zoning Appeal of Cambridge, 74 Mass.App.Ct. 804, 809, 910 N.E.2d 965 (2009); Central St., LLC v. Zoning Bd. of Appeals of Hudson, 69 Mass.App.Ct. 487, 492, 868 N.E.2d 1245 (2007). Standing essentially becomes a question of fact for the judge. See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra. “[W]hether a party is ‘aggrieved’ is a matter of degree ... and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule.” Paulding v. Bruins, 18 Mass.App.Ct. 707, 709, 470 N.E.2d 398 (1984), quoting Rafferty v. Sancta Maria Hosp., 5 Mass.App.Ct. 624, 629, 367 N.E.2d 856 (1977). The judge's ultimate findings on this issue will not be overturned unless shown to be clearly erroneous.³ See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra at 722, 660 N.E.2d 369; Central St., LLC v. Zoning Bd. of Appeals of Hudson, supra. See also Mass. R. Civ. P. 52(a), as amended, 423 Mass. 1402 (1996).

Here, the Hiebs challenged the standing of the Kenners by offering evidence to rebut the Kenners' presumption of aggrievement based on their claim that the Hiebs' new house would block the Kenners' view of the ocean. There was uncontroverted testimony from Karen Kempton, the Hiebs' architect, that the house was redesigned several times in order to lower the ridge height of the new roof such that it would be only seven feet taller than the structure it replaced. She also provided unrebutted testimony, supported by architectural renderings of the Hiebs' new house that were admitted in evidence, that the ridge height of the new roof would be 34.3 feet above sea level. David Clark, a professional engineer, gave uncontroverted testimony that the site plan for the Kenners' house indicated that the top of its foundation was 32.5 feet above sea level. Moreover, several photographs showing various perspectives on the Hieb and Kenner properties were admitted in evidence. Once the Hiebs offered this evidence to negate the presumption that the Kenners were aggrieved persons with standing to challenge the issuance of the special permit, which...