Sheehan v. Zoning Bd. of Appeals, 04-P-1032.

• Decision Date: 03 November 2005
• Docket Number: No. 04-P-1032.,04-P-1032.
• Citation: 65 Mass. App. Ct. 52,836 N.E.2d 1103
• Parties: Maureen SHEEHAN, trustee,<SMALL><SUP>1</SUP></SMALL> v. ZONING BOARD OF APPEALS OF PLYMOUTH & another.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

836 N.E.2d 1103

65 Mass. App. Ct. 52

Maureen SHEEHAN, trustee,¹ v. ZONING BOARD OF APPEALS OF PLYMOUTH & another.²

No. 04-P-1032.

Appeals Court of Massachusetts, Plymouth.

Argued June 6, 2005.

Decided November 3, 2005.

COPYRIGHT MATERIAL OMITTED

Robert E. McDonnell, Boston, for the plaintiff.

Brian K. Bowen, Plymouth, for Gladstone Development Corporation.

Present: ARMSTRONG, C.J., PERRETTA, & LENK, JJ.

ARMSTRONG, C.J.

The zoning board of appeals of Plymouth (board) granted Gladstone Development Corporation (Gladstone) a special permit to build a condominium complex on a site bordering Plymouth harbor. The plaintiff Sheehan, as trustee of Eight Mates Trust, a neighboring property owner, appealed the grant of the permit under G.L. c. 40A, § 17. The judge affirmed the board's decision, further concluding that Sheehan brought her action in bad faith. He awarded Gladstone legal but not actual costs³ incurred in defending the action. The case is before us on Sheehan's appeal from the judgment and on Gladstone's cross-appeal challenging the judge's refusal to award actual costs and attorney's fees based on the finding of bad faith.

The Gladstone site is located within Plymouth's waterfront zoning district. Plymouth Harbor forms the site's northern border; other boundaries are an abandoned railroad track to the south; Hedge Road, a public way, to the west; and private residences to the east. The site consists of approximately eleven acres, and its prominent features are a three-acre pond on its northwestern portion and a wooded hill on its southeastern portion. Gladstone proposes to build a forty-two-unit, nine-building condominium complex. Eight buildings located on the hill will house sixteen two-bedroom units and twenty-six three-bedroom units. The final building, a clubhouse located by the pond, will include an outdoor swimming pool, showers, bathrooms, and pool maintenance equipment. The project will also include parking, walking trails, stairs and trails to the beach, and a gazebo overlooking the pond. The board found, and Sheehan does not appear to dispute, that the proposed design is "of high standards."⁴

The Sheehan, or Eight Mates Trust, property consists of several contiguous parcels of land along the western side of Hedge Road and the southerly side of the railroad track. The land is largely undeveloped with the exception of some commercial buildings. Unlike the Gladstone property, the Sheehan property lacks harbor frontage.

Sheehan raises several issues on appeal. First, she argues that the trial court erred in its conclusion that the development met the tree preservation and parking requirements necessary for a grant of a special permit. Second, she argues that the development violates provisions in Plymouth's zoning bylaw concerning public access to the shoreline. Finally, she argues that the judge erred in finding that she brought her action in bad faith. On cross-appeal, Gladstone argues that Sheehan lacked standing to challenge the board's decision and that the judge erroneously limited the bad faith damages to service of process, witness attendance, and deposition fees.

1. Standing. General Laws c. 40A, § 17, allows "[a]ny person aggrieved" by a decision of a board of appeals to challenge the decision in Superior Court. At least one of the Eight Mates Trust lots abuts an abutter within 300 feet of the Gladstone site; under G.L. c. 40A, § 11, this creates a rebuttable presumption that Sheehan as trustee is a person aggrieved. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369 (1996). Once a defendant offers evidence to rebut the presumption, as Gladstone did, the presumption ends and the judge is required to decide the issue of the plaintiff's standing on the basis of all the evidence. See Bedford v. Trustees of Boston Univ., 25 Mass.App.Ct. 372, 376, 518 N.E.2d 874 (1988).

To survive a challenge to standing, the plaintiff must "demonstrate, not merely speculate, that there has been some infringement of his legal rights." Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass.App.Ct. 208, 211, 794 N.E.2d 1269 (2003). We do not read the term "person aggrieved" narrowly, but the claimed injury or loss must be "personal to the plaintiff, not merely reflective of the concerns of the community." Ibid. See Barvenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 132, 597 N.E.2d 48 (1992) (injury must be "special and different from the concerns of the rest of the community").

Whether an individual is aggrieved is a question of fact for the trial judge, Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. at 721, 660 N.E.2d 369, which should not be reversed unless clearly erroneous. Paulding v. Bruins, 18 Mass.App.Ct. 707, 709, 470 N.E.2d 398 (1984). The judge concluded that the trust property would lose some of its limited harbor view and the environmental and aesthetic benefits of a nearby wooded hill. Both factors would be an asset in selling or developing the trust property for residential purposes, sufficient grounds for standing based on the judge's reading of Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 330 n. 4, 613 N.E.2d 893 (1993). The judge also found that the trust property had protected environmental, harbor-view, and conservation interests under "various provisions of the Plymouth Zoning Bylaw." See Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass.App.Ct. 685, 688, 642 N.E.2d 314 (1994).⁵

"Generally, concerns about the visual impact of a structure do not suffice to confer standing," Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 146, 747 N.E.2d 131 (2001), and we do not read the Tsagronis case to confer standing on a property owner who claims that development will obstruct a water view. See Tsagronis, 415 Mass. at 335, 613 N.E.2d 893, (Abrams, J., dissenting), quoting from Nigro v. Jones, 332 Mass. 741, 744, 127 N.E.2d 650 (1955) (arguing that "a substantial deprivation of light, enough to render the occupation of the house uncomfortable according to the ordinary notions of mankind," is necessary for standing). See also Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass.App.Ct. at 216 & n. 10, 794 N.E.2d 1269. Sheehan's concern with the visual impact of development on a nearby wooded hill strikes us as the type of aesthetic sensibility insufficient to impart standing, as we discussed in Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 493, 540 N.E.2d 182 (1989). See Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass.App.Ct. at 688, 642 N.E.2d 314. However, the judge's conclusion that the bylaw created additional protected environmental, harbor-view, and conservation interests sufficient to provide Sheehan with standing was, as in the Monks case, supra, not clearly erroneous. Moreover, the judge had the benefit of a view, which put him in a better position than us to judge the potential impact of the Gladstone clubhouse on the trust property. The judge's finding that Sheehan has standing is not clearly erroneous.

2. Special permit conditions. In granting a special permit, the board must set forth the reasons for its decision that proposed development meets the applicable statutory and bylaw standards, Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295, 285 N.E.2d 436 (1972), including affirmative findings as to the existence of each condition required for the granting of the special permit. Vazza Properties, Inc. v. City Council of Woburn, 1 Mass.App.Ct. 308, 311, 296 N.E.2d 220 (1973). The Superior Court judge is required to hear the matter de novo and must independently find that each statutory or bylaw condition is met. Ibid.

Under § 401.09(C)(5) of the Plymouth zoning bylaw, a special permit is required for the construction of residences in a waterfront zone. In addition to the general requirements applicable to all special permit uses, waterfront special permit uses are subject to a series of "environmental design conditions." Sheehan concentrates on the bylaw conditions regarding parking and tree preservation.

a. Parking. Sheehan first argues that the board and the trial judge failed to make adequate findings that Gladstone's proposed development satisfied the off-street parking conditions contained in §§ 305.01 and 305.11 of the bylaw. The board determined that 109 parking spaces were required under the bylaw and that the requirement was satisfied by the 115 spaces provided for in the Gladstone development plans. These numbers reflect an accurate application of the formula set out in § 305.11 for multifamily dwellings,⁶ and substantiate the necessary affirmative finding. Compare Josephs v. Board of Appeals of Brookline, 362 Mass. at 299, 285 N.E.2d 436 (findings inadequate where they did not reflect specific application of mathematical formulae as required by pertinent bylaw provisions); Howland v. Board of Appeals of Plymouth, 13 Mass.App.Ct. 520, 523, 434 N.E.2d 1286 (1982) (same). The Superior Court judge made identical calculations. Sheehan argues that the bylaw required the board to treat the clubhouse, which is for the exclusive use of the residents, as an independent use with additional parking needs. As we observed in another case, logic suggests otherwise. See Trustees of Boston College v. Aldermen of Newton, 58 Mass.App.Ct. 794, 807 & n. 16, 793 N.E.2d 387 (2003) (simply aggregating parking requirements for different uses on site would result in "overcounting" of required parking spaces when, for example, "the same individual occupies a bed, a classroom seat, or a dining hall seat").

Sheehan argues that § 305.01 of the bylaw, which requires special permit uses to provide parking on the same lot as the principal use served, or else parking on other properties within 400 feet of the principal building,⁷ bars the board from counting sixteen spaces located at the clubhouse (which is...