Opinion
18-P-751
04-17-2019
R. THOMAS WALSH v. PLANNING BOARD OF DENNIS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
R. Thomas Walsh appeals from a Land Court judgment granting summary judgment to the planning board of Dennis (board), after the judge determined that Walsh lacked standing under G. L. c. 40A, § 17, to contest a special permit granted to the town of Dennis (town) authorizing the construction of a group home for veterans. We affirm.
Background. The summary judgment record reveals the following facts. Walsh owns a single-family residence at 111 Prince Way in the town. Abutting Walsh's residence is a vacant lot owned by the town. The town applied for a special permit to construct a single-family dwelling to be used as a group home for veterans. This special permit was submitted under § 4.9.2.4 of the town's zoning bylaw; § 4.9.2.4 was adopted in 2003 and allows for affordable housing projects to be permitted upon the issuance of a special permit by the board.
A public hearing was held on the town's application and the board approved and granted the special permit. Walsh filed a complaint in the Land Court appealing the board's decision pursuant to G. L. c. 40A, § 17. The parties filed cross motions for summary judgment. Following a hearing, the judge allowed the board's motion for summary judgment and denied Walsh's cross motion for summary judgment. This appeal followed.
Discussion. 1. Standard of review. In our review of a judge's decision on cross motions for summary judgment, we view the record in the light most favorable to the party whose summary judgment motion was denied. Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 516 (2011). When acting on a motion for summary judgment, the judge examines the record to determine whether, in the absence of any genuine issue of material fact, the moving party is entitled to judgment as a matter of law. Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248-249 (2010). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). On appeal, "[w]e review the Land Court judge's summary judgment decision de novo. Because the judge does not engage in fact finding in ruling on cross motions for summary judgment, we owe no deference to his assessment of the record" (citation omitted). Marhefka, supra at 517.
2. Analysis. Standing under G. L. c. 40A, § 17, is limited to persons "aggrieved by a decision of the . . . permit granting authority." In order to be a "person aggrieved," a plaintiff must assert "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 27 (2006), quoting Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493 (1989). Furthermore, the interest asserted by the plaintiff must be one that the "applicable zoning statute, ordinance, or by-law at issue is intended to protect." Central St., LLC v. Zoning Bd. of Appeals of Hudson, 69 Mass. App. Ct. 487, 492 (2007). See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 120 (2011). Although abutters enjoy a presumption of standing, "[w]hen [the board] expressly contested [Walsh's] standing in its motion for summary judgment, the presumption receded . . . and the burden of proof shifted to [Walsh,] who must come forward with specific facts to support the assertion of status as an aggrieved person." Riley v. Janco Cent., Inc., 38 Mass. App. Ct. 984, 985 (1995). See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996).
In the present appeal, Walsh alleges that he was aggrieved by the board's decision due to diminution in his property value and density concerns regarding the overcrowding of land, undue concentration of population, and his loss of privacy. The board has rebutted these claims, arguing that Walsh's aggrievements are not protected by the town's bylaw and that he has not proffered sufficient facts to show that he will suffer sufficient harm to provide him with standing.
a. Diminution in property value. First, we address Walsh's aggrievement based on his assertion that the value of his property will decrease as a result of the special permit. Walsh contends that the judge erroneously applied standing standards under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23, to his appeal pursuant to G. L. c. 40A, § 17, and that diminution in property value is protected by G. L. c. 40A and § 1.9 of the bylaw. In order to succeed on this ground, Walsh bears the burden of demonstrating that this concern is a derivative of a requirement in the applicable zoning scheme, which includes, in important measure, the town's bylaw. See Standerwick, 447 Mass. at 31-32. We conclude, as did the judge, that property value is not an interest protected in the town's affordable housing bylaw. See Kenner, 459 Mass. at 123, quoting Standerwick, supra (even in c. 40A appeals, "[d]iminution in the value of real estate is a sufficient basis for standing only where it is 'derivative of or related to cognizable interests protected by the applicable zoning scheme'").
In Standerwick, the Supreme Judicial Court differentiated standing in traditional c. 40A appeals from appeals under the Comprehensive Permit Act by stating that the "interests protected by G. L. c. 40B differ from, and in some respects are inconsistent with, those protected by G. L. c. 40A." Standerwick, 447 Mass. at 28. Specifically, the Supreme Judicial Court determined that "[t]he preservation of real estate values of property abutting an affordable housing development is clearly not a concern that the G. L. c. 40B regulatory scheme is intended to protect." Standerwick, supra at 30. Indeed, here, the town's affordable housing bylaw closely aligns with the interests protected under c. 40B. Chapter 40B "seeks to provide critically needed affordable housing throughout the Commonwealth." Standerwick, supra. Its purpose is to "provide expeditious relief from exclusionary local zoning by-laws and practices which might inhibit the construction of low and moderate income housing in the Commonwealth's cities and towns." Zoning Bd. of Appeals of Greenfield v. Housing Appeals Comm., 15 Mass. App. Ct. 553, 555-556 (1983). See Taylor v. Housing Appeals Comm., 451 Mass. 149, 157 (2008) (purpose of c. 40B is to "prevent[] municipalities from obstructing the building of a minimum level of housing affordable to persons of low income while leaving to local authorities their well-recognized autonomy generally to establish local zoning requirements" [citation and quotations omitted]); Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 354 (1973) (Legislature's intent was "to provide relief from exclusionary zoning practices which prevented the construction of badly needed low and moderate income housing").
The town adopted § 4.9 of its affordable housing bylaw pursuant to the authority granted in G. L. c. 40A, § 9. The town adopted this bylaw as an "alternative to [a] proceeding pursuant to G. L. c. 40B by relaxing certain zoning requirements to meet affordable housing goals . . . in an effort to allow the town to work cooperatively with developers while retaining some control over the aesthetics, location, and type of affordable housing developments." Davenport v. Planning Bd. of Dennis, 76 Mass. App. Ct. 221, 223 (2010). This purpose parallels that of G. L. c. 40B.
As Walsh acknowledges, part of c. 40A's suggested "objectives for which zoning might be established" is to encourage housing for persons of all income levels. St. 1975, c. 808, § 2A. Admittedly, another objective is "to conserve the value of land and buildings." Id. Although these two objectives may conflict with one another, St. 1975, c. 808, § 2A, specifically states that these are suggestions. Furthermore, G. L. c. 40A, § 9, gives a town the authority to grant special permits in accordance with its own bylaw. By enacting § 4.9 of the bylaw, the town has chosen to promote affordable housing, and in so doing, relaxed otherwise applicable zoning requirements.
Nonetheless, Walsh argues that § 1.2 of the bylaw, which states the over-all purpose of the bylaw, protects the diminution in his property value. This reliance, however, is misplaced where § 4.9.2.3.6 states, "In the event that a provision of Section 4.9.2 conflicts with another provision of the By-Law, the provisions of Section 4.9.2 shall control." Section 4.9.2 does not protect a diminution in an abutter's property value. Rather, as § 4.9.2.4.1 provides, its objective is to encourage the use of vacant lots for the "development of economically priced housing" that is "compatible with the adjacent neighborhood." Walsh's diminution claim, based on the mere presence of the group home adjacent to his property, can be "a sufficient basis for standing only where it is 'derivative of or related to cognizable interests protected by the applicable zoning scheme.'" Kenner, 459 Mass. at 123, quoting Standerwick, 447 Mass. at 31-32. The town's affordable housing bylaw does not recognize this interest. To allow Walsh, and other abutters, to claim a diminution in their property value as an aggrievement to affordable housing, would "frustrate[] the intent" behind the town's affordable housing bylaw. Standerwick, supra at 30.
Therefore, given the purpose behind the town's affordable housing bylaw and the interests it seeks to protect, we conclude that diminution in property value is not an injury that can confer standing on Walsh.
b. Density aggrievements. Second, Walsh argues that he has a cognizable basis for standing based on density violations concerning the prevention of the overcrowding of land, undue concentration of population, and his loss of privacy.
Even if Walsh had identified a density concern protected by the bylaw, he did not offer credible evidence to substantiate his claim of loss of privacy rooted in density. See Marashlian, 421 Mass. at 721. Walsh's speculative concerns based on a loss of privacy to his rear deck, windows, and outdoor shower; the location of spotlights; and the shadow and noise concerns, were all sufficiently rebutted by the board's evidence from both the project landscaper and architectural designer. Their affidavits stated in detail the location of vegetation between the two properties, the distance between the two properties, the angles of the windows, and the positioning of the outdoor lighting, showing that the group home will not intrude on Walsh's privacy. The architect specifically stated that light cast from the group home will not be visible from Walsh's property, and to the extent that it is, vegetation will provide sufficient screening so that no light fixture will point directly at Walsh's property, nor will it cast any shadows at any time of the year. Placement of the windows prevents any of the group home's occupants from seeing into Walsh's outdoor shower. As to noise, the board presented evidence that Walsh lives 120 feet from Route 134, showing that his noise concerns are no more than a "minimal or slightly appreciable harm." Kenner, 459 Mass. at 121.
See Davenport, 76 Mass. App. Ct. at 223 ("Section 4.9 provides express relief from density requirements for affordable housing developments"). See also § 4.9.2.4.2(a) of the town's bylaw.
On the basis of all the evidence, Walsh's speculative concerns, based on unsubstantiated personal opinion and speculation, fail to refute the board's substantial evidence that the group home will not result in a loss of privacy. See Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539, 543 (2008) (aggrievement must be "more than speculative"). See also Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass. App. Ct. 376, 383 (2006) (judge properly determined that plaintiffs' claims of harm to property values were "no more than [c]onjecture, personal opinion, and hypothesis" [citation omitted]); Butler v. Waltham, 63 Mass. App. Ct. 435, 439 n.10 (2005) ("Nothing in the affidavits the plaintiffs submitted undercuts the judge's conclusion that their claims of decreased property value and increased noise and light pollution were purely speculative").
In conclusion, Walsh's property value and density concerns do not amount to plausible claims of a violation of a private right, property interest, or legal interest sufficient to establish standing or to create a genuine issue of material fact as to standing. His alleged aggrievements based on density have also not been supported with credible evidence, rendering summary judgment in Walsh's favor inappropriate. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 703 n.15 (2012).
Concluding that Walsh lacks standing to challenge the board's decision, we will not address the merits of Walsh's merger argument. See Central St., LLC, 69 Mass. App. Ct. at 493 ("Standing is the gateway through which one must pass en route to an inquiry on the merits").
Judgment affirmed.
By the Court (Henry, Lemire & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 17, 2019.