421 Mass. 719 | Mass. | 1996
Lead Opinion
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 down
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.
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., ante 106, 107 (1995). Green v. Board of Appeals of Provincetown, 404 Mass. 571, 572 (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 (1949). The injury must be more than speculative, Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 335 (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 (1957). Cummings v. City Council of Gloucester, 28 Mass. App. Ct. 345, 350 (1990). Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption they are “persons aggrieved.” See Watros, supra at 111; Marotta, supra at 204. 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 (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 (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
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. Bedford v. Trustees of Boston Univ., supra at 374, 376-377. 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 (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 (1984), quoting Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624, 629 (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. Godfrey v. Building Comm’r of Boston, 263 Mass. 589, 591 (1928).
We discuss each issue here briefly. The judge ruled, inter alla, that the use of the locus for a hotel was protected as of right under G. L. c. 40A, § 6 (1994 ed.).
The judge found that the proposed hotel site is subject to unique conditions, not the result of the defendants’ actions,
Finally, the judge ruled that no frontage variance was required because once Ferry Wharf Way is conveyed, as required by stipulation, it will constitute a street for purposes of meeting the frontage requirement.
Concluding that the Superior Court judge’s findings and rulings as to standing and to the merits of the plaintiffs’ challenge were not in error, we affirm the decision of the Superior Court.
So ordered.
General Laws c. 40A, § 17 (1994 ed.), reads in relevant part: “Any person aggrieved by a decision of the board of appeals or any special permit granting authority or by the failure of the board of appeals to take final action concerning any appeal, application or petition within the required time . . . concerning any application for a special permit within the required time, whether or not previously a party to the proceeding, or any municipal officer or board may appeal to the land court department, the superior court department in which the land concerned is situated . . . by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk. . . . The complaint shall allege that the decision exceeds the authority of the board or authority, and any facts pertinent to the issue, and shall contain a prayer that the decision be annulled.”
For an extensive recitation of the history of the locus and of earlier litigation involving it, see Newburyport Redevelopment Auth. v. Commonwealth, 9 Mass. App. Ct. 206 (1980).
The rescript opinion of the Appeals Court in Riley v. Janeo Cent., Inc., 38 Mass. App. Ct. 984 (1995), is consistent with our decision. In that case, the Superior Court judge granted summary judgment for the landowner defendant (Janeo) on the issue of the plaintiff abutter’s standing to challenge the grant of variances and of a special permit. The variances allowed the defendant to erect nonconforming signs on the property and to pave a parking area within four, rather than the required five, feet of the building. The plaintiff’s affidavits failed specifically to address how the signs or the parking area would affect the plaintiff’s property interests. In a deposition not part of the record (and therefore properly not considered on the motion for summary judgment), the plaintiff appears to have stated that one of the variances “probably makes room for two-way traffic,” thereby allowing more lights from automobiles to shine into the plaintiff’s home. The judge found that such an assumption was speculative, and even when considered
Additionally, the judge found that the nonconforming use of the lot was statutorily protected as preexisting, and thus found it unnecessary to decide the issue whether the plaintiff had standing to challenge the grant of the special permit. Riley v. Janeo Cent., Inc., supra at 986.
Barvenik v. Aldermen of Newton, supra, was decided after the judge issued his opinion in this case.
See Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685, 688 (1994); Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619, 621-622 (1993); Jaffe v. Zoning Bd. of Appeals of Newton, 34 Mass. App. Ct. 929 (1993).
The standing issue in Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 330 n.4 (1993), involved evidence of a partially-obstructed view, together with the perceived decline in their property’s value. While the dissent argued in that case that those concerns were insufficient to confer standing on the plaintiff abutters, the parking and traffic concerns involved here are clearly of the type envisioned by the Zoning Enabling Act.
Under that statute, in conjunction with G. L. c. 41, § 81P (1994 ed.) (subdivision control law), a person may seek a declaration by the planning board in a city or town in which the subdivision control law is in effect, that a plan does not require approval under the subdivision control law. A majority of the board may endorse the plan as not requiring approval, or a majority of the board may authorize a person to endorse such a plan. An “approval not required (ANR)” endorsement creates a “zoning freeze,” in which the laws applicable to the lot at the time of endorsement remain applicable for a period of three years. G. L. c. 40A, § 6.
The plaintiffs’ claim that the chairman of the planning board was not authorized by the then current majority of the board (albeit authorized previously) and had no authority to endorse the plan in 1987 is supported neither by the language of the statute nor by common sense. The judge correctly ruled the ANR endorsement to be valid.
These findings include the fact that the “public trust doctrine” precludes private use of land below the low-water mark, that development is subject to approval of the Massachusetts Department of Environmental Quality Engineering pursuant to G. L. c. 91 (1994 ed.), that the locus is situated in an historic district, that an existing stipulation forbids certain construction that would obstruct the waterfront view (thus precluding construction of an above-ground garage), that the parcel is surrounded by historic buildings and a boardwalk precluding waterfront access, and certain topographic and soil conditions resulting from the parcel’s low elevation make a garage with 959 parking spaces nonfeasible.
The plaintiffs claim that the issue whether a frontage variance was unnecessary was not raised before the board and therefore is improperly before this court. Although an appeal to a board from the action of an administrative officer is limited to the content of the application, see G. L. 40A, § 15 (1994 ed.); DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 345 (1985), that rule is not implicated here. The issue was decided at trial and is properly before this court. See Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 9 (1981) (“[A] nonjurisdictional issue not presented at the trial level need not be considered on
The ordinance defines “street” as “a public thoroughfare which has been accepted for public use; an existing private thoroughfare in use which has not been accepted for public use; or a planning board approved subdivision street.”
Dissenting Opinion
(dissenting, with whom Lynch and Greaney, JJ., join). The Superior Court judge “rule[d] that Christopher Snow and [Sonya] Marashlian have standing to maintain this action as ‘aggrieved persons’ under G. L. c. 40A, § 17.” Relying on Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass. App. Ct. 274, 276 (1985), the judge reasoned that “[e]yen if Snow and Marashlian were to prove no more than the likelihood of fear of harm on the part of themselves, their visitors, clients and employees, they have standing to maintain this action.” The judge’s reasoning and ruling were incorrect. The judge should not have relied on Sherrill House, Inc., supra.
In Sherrill House, Inc., supra, the plaintiff operated a nursing home as a nonconforming use in a residential district. The Appeals Court held that the plaintiff lacked standing to challenge a decision of the Boston board of appeal
In a single proceeding, the judge in the Superior Court heard evidence that bore not only on the issue of standing, but also on the substantive issues relating to whether the zoning board of appeals of Newburyport had exceeded its authority in granting a special permit and two variances to the Newburyport Redevelopment Authority and Foster Properties, Ltd. The judge concluded that the plaintiffs had standing to challenge the zoning board’s decision, but that the decision was lawful. The court affirms that decision. In my view, the plaintiffs did not have standing and therefore the court did not have jurisdiction to review the board’s decision. Riley v. Janco Cent., Inc., 38 Mass. App. Ct. 984, 985 (1995). I would vacate the judgment and dismiss the action.
In this case, the challenge to the plaintiffs’ presumed aggrievement (and therefore standing) was supported by evidence of nonaggrievement. The presumption of standing therefore disappeared and the plaintiffs had the burden to prove to the judge the necessary facts to establish it. Barvenik v. Aldermen of Newton, supra at 131-132. The plaintiffs failed to carry that burden because, although the judge erroneously concluded that the plaintiffs had standing, his findings established the opposite.
The judge made the following relevant findings, all of which were warranted by the evidence: (1) “The number of parking spaces to be provided for the Project will be sufficient to meet the parking demands generated by the hotel. Therefore, the Project will not add to any existing onstreet parking congestion in the area”; (2) “[T]he supply of public parking spaces in the area will be adequate to meet the demand”; (3) “With respect to traffic, the [Pjroject is expected to minimally increase traffic volumes and . . . site-generated traffic will not have a major impact on area traffic patterns. Any adverse traffic impacts will be controlled by implementing certain mitigation measures.” The judge’s further find
Apart from evidence concerning traffic and parking, there was no evidence, and there were no findings, suggesting that the zoning board’s actions are likely to result in harm to the plaintiffs’ legally protected interests. Consequently, in my view, the Appeals Court correctly concluded, contrary to the legal conclusion reached by the trial judge (although the aforementioned findings were warranted), and by this court on appeal, that the plaintiffs lacked standing to bring this action. The Superior Court, therefore, lacked jurisdiction to review the zoning board’s actions. The judgment should be vacated and the action should be dismissed. See Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 433 (1949).
As a practical matter, the defendants “prevail” whether the court affirms the judgment, as it does here, or the case is dismissed, as I advocate.