Marashlian v. Zoning Bd. of Appeals of Newburyport

• Decision Date: 22 January 1996
• Parties: Sonya MARASHLIAN & another 1 v. ZONING BOARD OF APPEALS OF NEWBURYPORT & others. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 369

660 N.E.2d 369

421 Mass. 719

Sonya MARASHLIAN & another ¹ v. ZONING BOARD OF APPEALS OF NEWBURYPORT & others.²

Supreme Judicial Court of Massachusetts Essex.

Argued Sept. 13, 1995.

Decided Jan. 22, 1996.

Mark J. Guay, Newburyport, for the plaintiffs.

Timothy J. Courville, Boston, for Foster Properties, Ltd.

Judith H. Mizner, Newburyport, for Lisa L. Mead, amicus curiae, submitted a brief.

Present: LIACOS, C.J., and WILKINS, ABRAMS, LYNCH, O'CONNOR, GREANEY and FRIED, JJ.

LIACOS, Chief Justice.

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 waterfront area. The plaintiff abutters appealed from the board's decision under G.L. c. 40A, § 17 (1994 ed.), 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, § 17. Marashlian v. Zoning Bd. of Appeals of Newburyport, 37 Mass.App.Ct. 931, 933, 641 N.E.2d 125 (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. 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 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, § 17. Watros v. Greater Lynn Mental Health & Retardation Ass'n, Inc., 421 Mass. 106, 107, 653 N.E.2d 589 (1995). Green v. Board of Appeals of Provincetown, 404 Mass. 571, 572, 536 N.E.2d 584 (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, 86 N.E.2d 920 (1949). The injury must be more than speculative, Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 335, 613 N.E.2d 893 (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, 143 N.E.2d 270 (1957). Cummings v. City Council of Gloucester, 28 Mass.App.Ct. 345, 350, 551 N.E.2d 46 (1990). Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption they are "persons aggrieved." See Watros, supra at 111, 653 N.E.2d 589; Marotta, supra at 204, 143 N.E.2d 270. 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, 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. 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, 518 N.E.2d 874 (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 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, 86 N.E.2d 920. 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, 86 N.E.2d 920. Bedford v. Trustees of Boston Univ., supra at 374, 376-377, 518 N.E.2d 874. 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, 518 N.E.2d 874 (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, 470 N.E.2d 398 (1984), quoting Rafferty v. Sancta Maria Hosp., 5 Mass.App.Ct. 624, 629, 367 N.E.2d 856 (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, 143 N.E.2d 270. Godfrey v. Building Comm'r of Boston, 263 Mass. 589, 591, 161 N.E. 819 (1928).

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, 641 N.E.2d 125 (1994), quoting Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass.App.Ct. 619, 623, 624 N.E.2d 119 (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, 371 N.E.2d 728 (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. ⁵

The Appeals Court relied primarily on Barvenik v. Aldermen of Newton, supra at 131-133, 597 N.E.2d 48, to deny standing. 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. 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, 613 N.E.2d 893 (Abrams, J., dissenting) ⁸; Circle Lounge & Grille, Inc., supra at 430, 86 N.E.2d 920.

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, 360 N.E.2d 1051 (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, § 6 (1994 ed.). ⁹ The locus was endorsed "approval not required" (ANR) in 1987,...