Hoffman v. Board of Zoning Appeal

• Decision Date: 10 August 2009
• Docket Number: No. 07-P-1853.,07-P-1853.
• Citation: 910 N.E.2d 965,74 Mass. App. Ct. 804
• Parties: Heather HOFFMAN v. BOARD OF ZONING APPEAL OF CAMBRIDGE & another<SMALL><SUP>1</SUP></SMALL> (and a consolidated case<SMALL><SUP>2</SUP></SMALL>).
• Court: Appeals Court of Massachusetts

910 N.E.2d 965

74 Mass. App. Ct. 804

Heather HOFFMAN v. BOARD OF ZONING APPEAL OF CAMBRIDGE & another¹ (and a consolidated case²).

No. 07-P-1853.

Appeals Court of Massachusetts, Suffolk.

Argued February 13, 2009.

Decided August 10, 2009.

J. Gavin Cockfield, Boston, for Heather Hoffman.

Jason A. Manekas, Boston, for Husam Azzam.

Vali Buland, Cambridge, for board of zoning appeal of Cambridge.

Present: KATZMANN, RUBIN, & FECTEAU, JJ.

RUBIN, J.

This case involves cross-appeals from a judgment of the Land Court in two consolidated cases concerning two parcels of land in the city of Cambridge (city). Husam M. Azzam, a defendant in one case and the plaintiff in the other, now owns both parcels. His predecessors in title, Maximiano Gouveia and Narciza Gouveia (the Gouveias), took title to the first parcel 224-226 Hurley Street (the first parcel), by deed dated March 19, 1942. They took title to the second parcel, 220-222½ Hurley Street (the second parcel), by deed dated May 17, 1950. As of that latter date, the two parcels came into common ownership. The two parcels (collectively the locus) are located in the residence C-1 zoning district under the city zoning ordinance (ordinance).

I.

When the Gouveias purchased the first parcel in 1942, it held a building with four dwelling units. These four dwelling units did not change in any significant way from 1942 through their sale to Azzam in 2000. The Gouveias purchased the second parcel as an investment to operate as a commercial parking lot. Pursuant to a commercial license, the Gouveias and, after their deaths, their heirs operated the second parcel as an open-air parking lot for twelve cars from 1950 to 2000, when they sold the second parcel to Azzam. A chain link fence separated the two parcels.

In July, 2000, Azzam entered into a purchase and sale agreement with the heirs of Narciza Gouveia to purchase the locus.³ This agreement was "[s]ubject to [Azzam] obtaining building permit for 2 units" on the parcel that was then in use as a commercial parking lot. By September 27, 2000, except for final review of his plans, Azzam had received all of the necessary approvals for his building permit applications. On that date, Azzam took title to the locus as trustee of the 220-226 Hurley Street Realty Trust in a single deed that describes the locus as two parcels. The first parcel is initially described as "a certain parcel of land with the buildings thereon" and is further described using metes and bounds, and the second parcel is described as "the land numbered 220-222½ Hurley Street." On October 13, 2000, the city issued building permits for the construction of two single-family dwelling units on the second parcel. After construction was complete, the commissioner issued certificates of occupancy for those dwelling units.

In July, 2003, the building commissioner (commissioner) rescinded the certificates of occupancy based on his determination that the two parcels had merged into a single lot for zoning purposes. If the locus was a single lot when the city issued the building permits, the two additional dwelling units would be in violation of the ordinance's minimum lot area per dwelling unit requirement. Azzam appealed the commissioner's determination to the board of zoning appeal (board), which upheld the commissioner. Azzam then appealed to the Superior Court (the enforcement appeal).⁴

Azzam subsequently applied to the board for a variance to legalize the two newly constructed dwelling units. The board granted the variance on November 5, 2004. The board's decision reports the arguments that Azzam's lawyer made in support of the variance, namely "that the lot is unusually shaped in its narrowness making it difficult to achieve an adequate and reasonable use of the property without building the structures as Mr. Azzam has done." The lawyer "also cited the merger doctrine as the cause of, and the hardship related to the current dilemma. Specifically, he stated that Azzam went ahead with the project without being aware that the merger doctrine would be applied." The board also noted the following hardships:

"1. that the lot is unusually shaped;

"2. that it contains a structure built before the advent of zoning, which is grossly nonconforming to current standards and creates an unusual position for the building of a building on the lot, and that this property is encumbered by this structure; and

"3. that there is a condition of wetness in the soil of the site, which means that development beneath the buildings would be impractical."

The board concluded, "The Board specifically finds that there are circumstances involving a substantial hardship relating to this property within the meaning of [ ]G.L. c. 40A, § 10. The Board also finds that desirable relief could be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Ordinance." Appellant Heather Hoffman, who, with her husband, Mark Jaquith, owns and resides at property located across the street from the locus, appealed to the Land Court the decision granting the variance (the variance appeal).

The enforcement appeal was transferred to the Land Court and consolidated with the variance appeal for trial. Hoffman sought to intervene in the enforcement appeal, but her motion was denied. After trial, the Land Court entered a single judgment in the consolidated cases. In the variance appeal, the judge concluded that Hoffman lacked standing. In the enforcement appeal, the judge affirmed the board's conclusion, holding that the two parcels merged when they came into common ownership in 1950 and that they should be treated as a single lot for zoning purposes. Both Hoffman and Azzam have appealed.

II.

A.

We address first the variance appeal, turning initially to the question of Hoffman's standing. Hoffman is a "party in interest" with presumptive standing to challenge the decision of the board. See G.L. c. 40A, § 11 (defining "parties in interest" as "the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner"). This presumptive standing recedes when the party challenging standing offers evidence supporting his or her challenge. Barvenik v. Board of Aldermen of Newton, 33 Mass. App.Ct. 129, 131, 597 N.E.2d 48 (1992). Hoffman concedes that an adequate showing was made to rebut her presumptive standing and that the burden, therefore shifted to her to demonstrate that she was a person aggrieved. See id. at 131-132, 597 N.E.2d 48.

Hoffman cites numerous injuries resulting from the two additional dwelling units that render her a person aggrieved. We conclude that the effect on on-street parking near Hoffman's property is dispositive.

Hoffman and her husband have two vehicles, each of which has a city resident parking sticker. She also has a visitor's parking pass that allows her guests to park in her neighborhood. She and her husband park one of their cars in their driveway and another on the street.

Hoffman presented the testimony of a licensed professional traffic engineer who had performed a traffic analysis to determine whether occupancy of the two additional dwelling units would affect parking near Hoffman's property. Azzam also presented the testimony of his own licensed professional traffic engineer. Hoffman's traffic engineer testified that during certain peak hours, either no permit parking spaces were available or only one permit parking space was available on Hoffman's block of Hurley Street. (He also testified that at other times, up to two permit parking spaces were available.) He concluded that "the one or two spaces that are available" on Hoffman's block "will become occupied" if the additional dwelling units become occupied. Azzam's traffic engineer testified that there were many available parking spaces within a two-block radius of Hoffman's property. The judge found that Hoffman and her husband currently experience difficulty finding on-street parking on their block and that the two additional dwelling units would likely increase the on-street parking demand by one or two vehicles.

"When the factual inquiry focuses on standing ... a plaintiff is not required to prove by a preponderance of the evidence that his or her claims of particularized or special injury are true. `Rather, the plaintiff must put forth credible evidence to substantiate his allegations. It is in this context that standing is essentially a question of fact for the trial judge.'" Butler v. Waltham, 63 Mass. App.Ct. 435, 441, 827 N.E.2d 216 (2005) (brackets omitted), quoting from Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369 (1996). The idea of putting forth "credible evidence" of a particularized injury is equivalent to establishing a "plausible claim" of that injury: "[t]he two phrases are simply different ways of expressing the same concept. A plaintiff makes a `plausible claim' of particularized injury by producing `credible evidence' of that injury." Id. at 441 n. 13, 827 N.E.2d 216. The threshold question whether Hoffman has standing is different than the ultimate merit of Hoffman's allegations. See Marashlian, 421 Mass. at 721, 660 N.E.2d 369. Thus, the relevant question was whether Hoffman put forth credible evidence of a particularized injury to support her claimed status as a person aggrieved.

In Marashlian, 421 Mass. at 723, 660 N.E.2d 369, the Supreme Judicial Court held that even a diminution in on-street parking that would leave adequate parking available was sufficient to confer standing. Under Marashlian, Hoffman produced credible evidence of injury sufficient to confer standing. That she and her husband will still be able if the variance is granted to park elsewhere, within several blocks of their property, does not mean that they have failed to produce...