Standerwick v. Zoning Bd. of Appeals

• Decision Date: 16 June 2006
• Citation: 447 Mass. 20,849 N.E.2d 197
• Parties: Eileen STANDERWICK & others<SMALL><SUP>1</SUP></SMALL> v. ZONING BOARD OF APPEALS OF ANDOVER & another.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

849 N.E.2d 197

447 Mass. 20

Eileen STANDERWICK & others¹ v. ZONING BOARD OF APPEALS OF ANDOVER & another.²

Supreme Judicial Court of Massachusetts, Essex.

Argued February 8, 2006.

Decided June 16, 2006.

COPYRIGHT MATERIAL OMITTED

Kevin P. O'Flaherty, Boston, for Avalon at St. Clare, Inc.

Andrew A. Caffrey, Jr., Andover, for the plaintiffs.

Thomas J. Urbelis, Boston, for Zoning Board of Appeals of Andover, was present but did not argue.

The following submitted briefs for amici curiae:

Michael Pill, Shutesbury, pro se.

R. Jeffrey Lyman, Michael K. Murray, & Adam Hollingsworth, Boston, for Greater Boston Real Estate Board & others.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

MARSHALL, C.J.

We consider in this case whether a claim of diminution of property values by abutting landowners constitutes a cognizable basis for standing to challenge a comprehensive permit for the construction of affordable housing granted pursuant to G.L. c. 40B, §§ 20-23(act). Because the diminution of real estate values is not an injury to an interest that G.L. c. 40B was intended to protect, we conclude that it does not.

In 2002, the zoning board of appeals of the town of Andover (board) issued a comprehensive permit to Avalon at St. Clare, Inc. (developer), to construct a four-story apartment building, with one-quarter of the units to be reserved as affordable rental housing for low and moderate income tenants. The property at issue is located in an area of Andover zoned for singlefamily homes on one-acre lots. The plaintiffs, abutting and neighboring landowners, appealed to the Superior Court claiming they were "aggrieved" by the board's decision. See G.L. c. 40B, § 21.³ A judge in the Superior Court allowed the developer's motion for summary judgment, ruling that the plaintiffs lacked standing to challenge the issuance of the comprehensive permit because their claim that the affordable housing project would diminish their property values was "not a concern recognized by G.L. c. 40B," and therefore not an injury that could confer standing on the plaintiffs.

The Appeals Court reversed, holding that diminution in real estate values is "an injury that is a tangible and particularized injury to a private property or legal interest protected by zoning law," which it held to be "a valid basis for a claim of standing" to challenge the issuance of a comprehensive permit under G.L. c. 40B. Standerwick v. Zoning Bd. of Appeals of Andover, 64 Mass.App.Ct. 337, 341, 342, 833 N.E.2d 181 (2005) (Standerwick). It further concluded that the plaintiffs' presumptive standing as abutters⁴ was not adequately challenged by evidence submitted by the developer in support of its motion for summary judgment. Id. at 342-344, 833 N.E.2d 181. We granted the developer's application for further appellate review. We affirm the decision of the Superior Court judge.⁵

1. Background. As described more fully by the Appeals Court, Standerwick, supra at 338-339, 833 N.E.2d 181, the developer seeks to construct a 115-unit four-story apartment building on a 9.127-acre parcel at 460 River Road in Andover (site). Twenty-nine units of the building will be designated for low and moderate income housing. The site, which is enclosed by a ten-foot high masonry wall running parallel to three of the property's boundaries, is currently improved by a four-story brick building built in 1959, and is used as a residence for a religious community. The developer intends to retain the masonry wall but raze the existing building and construct a new building on the site.

In October, 2001, after the board denied the developer's first application for a comprehensive permit to construct 152 units in eight buildings on the property, the developer appealed to the housing appeals committee (HAC) of the Department of Housing and Community Development, pursuant to G.L. c. 40B, §§ 22-23. The developer, the board, and a local citizens' group known as "Protect Andover Zoning" (composed of the plaintiffs and others) then engaged in HAC-sponsored mediation, during which the developer agreed to reduce the scope of its original proposal to 115 units in a single, four-story building, subject to certain other conditions. The HAC remanded the case to the board for further consideration. After additional public hearings, the board approved the comprehensive permit at issue in May, 2002.

The plaintiffs commenced this action in June, 2002, claiming that as abutters and neighbors of the proposed development, they were "aggrieved" by the issuance of the comprehensive permit. See G.L. c. 40B, § 21.⁶ In response to the developer's discovery, the plaintiffs identified the following as the adverse impacts of the proposed housing development on them: light and noise pollution, traffic and related safety concerns, an increase in crime or vandalism, adverse drainage effects on septic systems, a decrease in the plaintiffs' privacy, and a diminution of their property values. Although requested to do so, the plaintiffs offered no expert opinion to support any of the claimed adverse impacts.⁷

In March, 2003, the developer filed a motion for summary judgment supported by affidavits on the issue of the plaintiffs' standing to challenge the comprehensive permit. In one, a civil engineer opined that the development would have no adverse impact on local water and sewer service,⁸ and that a new drainage system would adequately handle storm water drainage and run-off in conformance with State environmental standards. In a second affidavit, a traffic engineer stated that the development would not create unacceptable levels of service at various relevant intersections in the area and that development-generated traffic could be "adequately and safely" absorbed by local roads. With respect to other anticipated adverse impacts, the developer argued that the plaintiffs, who had conceded in their own responses to discovery that they had no evidence to support them, would not be able to prove their claims at trial.⁹

In opposition to the developer's motion for summary judgment, the plaintiffs submitted affidavits from two real estate professionals, each of whom claimed that the proposed development would diminish the value of the plaintiffs' properties.¹⁰ The developer moved to strike the affidavits on the ground that property value diminution cannot confer standing in a G.L. c. 40B case "because preservation of property values is not within the scope of interests protected" by G.L. c. 40B.¹¹

A judge in the Superior Court allowed the developer's motion for summary judgment, concluding that the plaintiffs' claims of light and noise pollution did not raise cognizable health and safety concerns but were "purely aesthetic"; that the plaintiffs' traffic claims would not impact safety; and that their claim that drainage might raise health and safety issues was "speculative." He concluded that the developer had rebutted the plaintiffs' presumption of standing on the traffic and drainage issues by expert opinion and that the plaintiffs had proffered nothing to support their "apprehension and speculation" that the proposed development would lead to an increase in crime or vandalism. As noted earlier, the judge ruled that the claim of diminution of real estate values could not serve as a basis for standing. The judge allowed the developer's motion to strike the plaintiffs' real estate value affidavits, although his reason for doing so is not clear. See note 11, supra. The plaintiffs appealed.

The Appeals Court held that whether a person is "aggrieved" under G.L. c. 40B, § 21, is governed by the "substantive standards" applicable to standing analysis under G.L. c. 40A, § 17, "such as property values, traffic, or parking," Standerwick, supra at 340, 833 N.E.2d 181. This, it said, included the plaintiffs' claim that their property values would diminish if the proposed affordable housing development went forward.¹² The Appeals Court further determined that, because of their presumptive standing as abutters, the plaintiffs had no burden to produce any evidence supporting their claims "unless and until the defendants had offered evidence `warranting a finding contrary to the presumed fact,'" id. at 342, 833 N.E.2d 181, quoting Watros v. Greater Lynn Mental Health & Retardation Ass'n, 421 Mass. 106, 111, 653 N.E.2d 589 (1995) (Watros). Concluding that reliance on the plaintiffs' failure to identify in discovery any evidence to support their claims of aggrievement did not constitute such "evidence,"¹³ the court ruled that the developer had not come forward with sufficient evidence to rebut this presumption of standing. Id. at 344-345, 833 N.E.2d 181 & n. 16.

2. Legally cognizable injury under G.L. c. 40B. We first address the scope of the cognizable interests protected by G.L. c. 40B, and then turn to the issue of the plaintiffs' presumptive standing.¹⁴ The developer asserts that the Appeals Court erred in concluding that analysis of the injury that constitutes cognizable "aggrievement" under G.L. c. 40B, § 21, is the same as the analysis for injury constituting "aggrievement" cognizable under G.L. c. 40A, § 17. It next argues that, in any event, diminution in real estate values is not a legally cognizable injury for purposes of standing to challenge the issuance of a comprehensive permit. We agree with the developer that assertions of harm that confer standing as a "person aggrieved" under G.L. c. 40A are not necessarily cognizable as a basis for "aggrievement" under G.L. c. 40B.

General Laws c. 40B, § 21, provides that "[a]ny person aggrieved by the issuance of a comprehensive permit or approval may appeal to the court as provided in [G.L. c. 40A, § 17]." See note 3, supra. While the words "person aggrieved" are not to be narrowly construed, Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270 (1957) (Marotta), the Legislature has "intentionally limited the class of parties...