Opinion
21-P-69
04-14-2022
TRUSTEES OF the WINCHESTER HOUSE CONDOMINIUM TRUST & others v. ZONING BOARD OF APPEALS OF BROOKLINE & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Roth Family, LLC and 40 Centre Street, LLC (collectively the developers) sought and received a comprehensive permit from the Brookline zoning board of appeals (board), pursuant to G. L. c. 40B, §§ 20 - 23, for a forty-unit mixed income apartment building located in the Coolidge Corner section of Brookline. The trustees of the Winchester House Condominium Trust, representing the interests of the owners of units in an abutting condominium building, along with some individual owners of units in that building (together, the plaintiffs), appealed to the Land Court, asserting that the decision to grant the comprehensive permit was arbitrary, capricious, exceeded legal authority, and constituted an abuse of discretion. The plaintiffs argued that the board's decision failed to "protect the health or safety of the occupants of the housing or of the residents of [Brookline]"; failed to "promote better site and building design in relation to the surroundings"; and failed to "preserve open spaces." They further contended that the board exceeded its authority by delegating to other town boards and officials or deferring approval of certain issues, including planning, construction, and maintenance of the proposed project. The plaintiffs raised issues as to impacts from noise, traffic and parking, waste and recycling disposal, fire safety, shadows, injury to trees, and design and density. After some claims of aggrievement were rejected at summary judgment, and following a trial in the Land Court, a judge of the Land Court concluded that the plaintiffs lacked standing and dismissed the complaint. We affirm.
The complaint contained a second count seeking to enjoin the developer from damaging or destroying trees located adjacent to the project site. That claim was dismissed for lack of jurisdiction, without prejudice for sixty days to provide an opportunity to file the claim in the Superior Court if the plaintiffs so chose. The plaintiffs did so, and the Chief Justice of the Trial Court assigned a Land Court judge to sit as a Superior Court judge to hear the case. Thus, the two cases were heard together. Ultimately the Land Court judge dismissed the Superior Court case, and the plaintiffs do not pursue it on appeal.
Background. A. General Laws c. 40B. General Laws c. 40B "reflects the Legislature's considered judgment that a crisis in housing for low and moderate income people demands a legislative scheme that requires the local interests of a town to yield to the regional need for the construction of low and moderate income housing, particularly in suburban areas." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 29 (2006). "In addition to streamlining the permitting process itself, the clear intent of the Legislature was to promote affordable housing by minimizing lengthy and expensive delays occasioned by court battles commenced by those seeking to exclude affordable housing from their own neighborhoods." Id.
B. The proposed development. The project will be located on Centre Street in Brookline, 500 feet from Beacon Street and Harvard Street, which are both significant arterial roadways. The current two-story building will be replaced by a forty-unit, six-story apartment building with twenty-five parking spaces. A condition of the comprehensive permit is that at least twenty percent of the units shall be and remain affordable in perpetuity. Building height, story, and floor area ratio limitations of the zoning by-law were waived. In addition, setback requirements were waived: the side setbacks were reduced from twenty-four to 5.1 feet and 6.1 feet, respectively; the rear setback was reduced from thirty to 5.3 feet; and the front setback was reduced from twenty feet to five.
The board waived the number of spaces required by the zoning by-law, which was, at the time the application was submitted, eighty-two spaces for a forty-unit building.
The plaintiffs’ condominium is a nine-story residential building; its rear lot line abuts the rear lot line of the project. The condominium's inground swimming pool abuts the rear of the project. In addition, the condominium owns a parking lot that abuts the project's western side yard and fronts on Centre Street.
C. Procedural posture. On the defendants’ summary judgment motion challenging the plaintiffs’ standing, a Land Court judge (summary judgment judge) determined that the plaintiffs’ presumption of standing had not been rebutted as to traffic and parking impacts, waste and recycling, and fire safety. The summary judgment judge concluded, however, that the plaintiffs’ concerns regarding injury to trees, design and density issues, and shadow impacts were insufficient as a matter of law to confer standing. As to noise, in opposition to the summary judgment motion, the plaintiffs offered expert evidence that the forty-two rooftop air conditioner condensers on the proposed building will increase noise levels at the balconies of the plaintiffs’ condominium units above ambient levels by eleven decibels on the "A" weighted scale (dBA). Local and State regulations limit general noise increases to ten dBA and tonal noise increases to five dBA; the plaintiffs’ expert opined that the noise increases will violate those regulations. Condition fifteen in the comprehensive permit, however, conditioned the issuance of final occupancy permits on the developers demonstrating to the building commissioner that the project complies with the noise by-law (1) when fifty percent of the certificates of occupancy have been issued, and (2) again when the project is fully occupied. The summary judgment judge concluded that, although noise might otherwise have been a valid issue to confer standing, "the [p]laintiffs can have no ‘reasonable expectation of proving a legally cognizable injury’ " on this ground because this condition provided an objective and quantifiable check on noise.
Prior to trial, the plaintiffs abandoned their claim of standing on issues of fire safety and they are not before us.
Condition fifteen provides: "When fifty ... percent of the Certificates of Occupancy are issued, the Applicant shall demonstrate to the Building Commissioner that the Project complies with the Town Noise By-Law. Prior to the issuance of the final Certificate of Occupancy, the Applicant shall demonstrate to the Building Commissioner that the Project complies with the Town Noise By-Law."
In a pretrial motion in limine, the plaintiffs sought to be relieved of the evidentiary burden of proving standing at trial. A different Land Court judge, who was also the trial judge, denied the motion, concluding that standing remained an issue for trial. The plaintiffs also sought to confirm that they could introduce evidence at trial on the issues of trees, noise, and shadow impacts, in support of standing and in support of their request that the court annul the comprehensive permit. The defendants sought to exclude evidence of those impacts. The trial judge, reasoning that the summary judgment judge had determined "that these trees are not the type of open space the Town Meeting intended to protect when it enacted the [relevant Town of Brookline] by[-]law" and are not a protected interest under G. L. c. 40B, allowed the defendants’ motion as to trees. Except for evidence that the project could not possibly be engineered to satisfy the condition that the developers bring the project into compliance as to noise, the trial judge also precluded any evidence of noise impacts. Finally, noting the summary judgment judge's holding that shadows are not an issue protected by G. L. c. 40B, the trial judge precluded evidence of shadow impacts.
On appeal, the plaintiffs do not argue that the trial judge erroneously concluded that standing remained a live issue for trial. Accordingly, we do not address that portion of the trial judge's order on the motion in limine.
Following a three-day trial on the issues of traffic impacts and waste disposal, the trial judge concluded that the plaintiffs lacked standing and entered a judgment dismissing their appeal of the comprehensive permit.
Discussion. On appeal from that judgment, the plaintiffs do not argue that the trial judge erred in concluding that the plaintiffs lack standing based on traffic and waste disposal concerns. Thus, those issues are not before us. Rather, the plaintiffs argue only that the summary judgment judge wrongly concluded that they lacked standing on grounds of noise, shadow, and tree impacts, and that the trial judge erred by precluding the plaintiffs from introducing evidence as to those impacts.
The plaintiffs also argue that the board, by deferring to future action by other boards, materially and substantially violated the anti-delegation doctrine set forth in Weld v. Board of Appeals of Gloucester, 345 Mass. 376 (1963), and Tenneco Oil Co. v. City Council of Springfield, 406 Mass. 658 (1990). Because of the result we reach, we need not consider that issue.
A. Standards of review. A person "aggrieved," who asserts "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest," has standing to appeal from a board's decision to grant a comprehensive permit. Eisai, Inc. v. Housing Appeals Comm., 89 Mass. App. Ct. 604, 607 (2016), quoting Standerwick, 447 Mass. at 27. We review the grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Jinks v. Credico (USA) LLC, 488 Mass. 691, 704 (2021) ; Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). See also Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81, 89 (2007).
While aggrievement is not to be construed narrowly, a showing of "minimal or slightly appreciable harm" is not enough to establish standing; "[t]he adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 122 (2011). And, although it is true that only "person[s] aggrieved" may pursue appeals pursuant to both G. L. c. 40A, § 17 and G. L. c. 40B, § 21, and that the term "aggrieved" is interpreted in a like manner for both statutes, the interests protected by G. L. c. 40B not only differ from those protected by G. L. c. 40A, § 17, but may at times be inconsistent with them. See Standerwick, 447 Mass. at 28, and cases cited. Thus, although there is a rebuttable presumption that abutters are aggrieved persons under G. L. c. 40B, Jepson, 450 Mass. at 88, on a motion for summary judgment, "a defendant can rebut the presumption by showing that, as a matter of law, the claims of aggrievement raised by an abutter ... are not interests that [G. L. c. 40B] is intended to protect." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 701 (2012) (discussing G. L. c. 40A).
In Standerwick, the Court had "no hesitation in concluding that granting standing to challenge the issuance of a comprehensive permit under G. L. c. 40B, § 21, to those who claim a diminution in the value of their property frustrates the intent of the Legislature." Id. at 30. Similarly, where, pursuant to G. L. c. 40B, a community has not reached the minimum statutory threshold of affordable housing, "a developer may override bulk, height, dimensional, use, and other limitations, often invoked as a pretext to exclude affordable housing." Id. at 29. A person who claims aggrievement based on an issue that is not protected by G. L. c. 40B, has no standing to appeal from the grant of comprehensive permit. See id. at 30.
With these principles in mind, we turn to the plaintiffs’ contention that they are sufficiently aggrieved for purposes of standing under G. L. c. 40B due to impacts from shadows and noise, and the impact on trees.
B. Shadows. Leaving aside the issue of whether we should consider a shadow study that was offered in support of the developers’ motion for summary judgment unattached to an affidavit, and yet relied on by the defendants and the plaintiffs, we assume for purposes of summary judgment that, as the plaintiffs contend, "the [p]roject's [b]uilding will cast new shadows year-round over the [c]ondominium's parking lot." We also accept that certain provisions of the local zoning by-law encourage the planning board and zoning board of appeals to consider shadow impacts in reviewing site and building design proposals for large projects. As demonstrated above, however, interests protected by the zoning by-law are not necessarily protected under G. L. c. 40B; interests protected by density and use limitations readily come to mind. The only argument the plaintiffs make as to shadows is that new shadows will impact the parking lot of the condominium. The summary judgment judge noted that "[i]ncreased shadows are, to one degree or another, an almost-always inevitable byproduct of construction. In a scheme intended to promote dense housing to allow towns and cities to meet their affordable housing needs, affording protection against harms generated by increased shadows would undermine legislative intent." At least on this record, we cannot say that the summary judgment judge erred in concluding that affording standing to the plaintiffs based on shadow impacts on a parking lot would frustrate the intent of the Legislature. See Standerwick, 447 Mass. at 30-31.
See Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752, 758 (2010) (shadow study unattached to affidavit has character of hearsay and "fails to satisfy the requirement of Mass. R. Civ. P. 56 [e], 365 Mass. 824 [1974]").
C. Noise. We are confronted with the question whether a comprehensive permit that is conditioned on bringing into compliance a project that might otherwise violate State and local noise regulations negates an abutter's status as a "person aggrieved." Again, we see no error in the summary judgment judge's conclusion that, in the circumstances of this case, noise impacts cannot confer standing on the plaintiffs. Unlike the condition at issue in Jepson, 450 Mass. at 90-91, the condition imposed here eliminates the possibility that the development will cause noise at levels that violate the local by-law. Condition fifteen requires the developers to demonstrate to the building commissioner that the project complies with the town noise by-law at fifty percent occupancy and again prior to one hundred percent occupancy. See Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 375 (1973) (board may condition permit upon compliance with "identified plans or other certain standards"). There is a "strong presumption that a public official will perform honestly and impartially and will properly discharge the duties of her office in the public interest." Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992). The plaintiffs’ bare objections, which amount to a concern that the building commissioner will not adequately protect their interests, are speculative and insufficient to overcome the defendants’ well-supported motion. See Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974). We conclude that, in these circumstances, the judge did not err in determining that the plaintiffs had no reasonable expectation of proving a cognizable injury arising from noise impacts.
As the summary judgment judge noted in his decision allowing in part and denying in part the defendants’ motion, in light of condition fifteen, "[t]he developers of the Project have, in effect, taken on squarely the risk that the design they have had permitted will not produce excessive noise. Should the developers learn that the Project as designed does, in the real world, cause improper noise, the developers will need to take whatever steps are necessary to achieve compliance." The developers similarly represent on appeal that "under no set of circumstances does the Board's decision allow the Project to operate in a manner that exceeds the Noise Bylaw and state noise requirements." The developers further state that "the Board's decision provides an absolute prohibition against violations of the Brookline Noise Bylaw and state law regarding noise." The town and the developers are obligated to ensure compliance with condition fifteen, along with the other conditions in the board's decision, and those obligations may not be taken lightly. See Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147, 159 (1976) (board action must do more than "express[ ] ... an intent"; it must "require[ ] and compel[ ] the applicant[ ] ... to comply with specified lawful ‘conditions and safeguards’ ").
D. Trees. The plaintiffs accept that the defendants have the legal right to excavate on their property -- even if that means that they disturb roots of trees that border the property line or are on the plaintiffs’ property -- and agree that the judge properly dismissed count two of the complaint. See Shiel v. Rowell, 480 Mass. 106, 107 (2018) (property owner has right to cut boughs and roots intruding from abutter's property). Yet, they assert on appeal that the impacts on trees from exercising that legal right are protected by the local by-law's recommendation that local boards preserve trees insofar as "feasible" or "practicable." They contend, without citation to legal authority, that zoning regulations frequently limit legal rights.
Here, we need go no further than a review of the by-law to conclude that it does not prohibit a property owner's legal right to remove roots and boughs of an abutter's trees. Not only are words like "feasible" and "practicable" far from mandatory dictates, but the by-law specifically states that the design standards of § 5.09(4) are "not to be regarded as inflexible requirements." Where the local by-law does not protect against tree impacts to abutters caused by developers exercising their legal right to excavate on their own property in preparation for a G. L. c. 40B project, we discern no error in the judge's rejection of impacts on trees as a basis for conferring standing on the plaintiffs. ,
Although G. L. c. 40B, § 20 recognizes that some local regulations or requirements that promote better site and building design in relation to the surroundings may be "consistent with local needs if they are reasonable in view of the regional need for low and moderate income housing considered with the number of low income persons in the city or town affected," the precatory language used in § 5.09(4) does not put it into the category of a regulation or a requirement.
We limit our conclusion in this case to the specific and unique facts described herein.
Conclusion. Because we see no error in the summary judgment judge's conclusions that the plaintiffs are not aggrieved as a matter of law by the project's impacts on shadows, noise, and trees, the trial judge did not err by precluding the plaintiffs from introducing evidence of those impacts at trial.
Judgment affirmed.