Opinion
15-P-345
03-03-2016
ERIC HOLMES v. FAWN ANDERSEN & others.
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
The plaintiff, Eric Holmes, appeals from the dismissal of his complaint contesting a decision of defendant Boston board of appeal (BOA) that upheld the issuance of a building permit to his neighbors, defendants Fawn and Bjorn Andersen (the Andersens), and the approval of that permit by defendant Boston Redevelopment Authority (BRA). For substantially the reasons stated by the Superior Court judge in her memorandum of decision and order, we affirm.
Background. Holmes resides at 31 Washington Street in Charlestown. That property abuts the property at 29 Washington Street owned by the Andersens. Both residences are within a "neighborhood design overlay district" (NDOD), which was "established to protect the existing scale, quality of the pedestrian environment, character of the residential neighborhoods, and concentrations of historic buildings within the [NDOD]." Boston Zoning Code (code) § 62-19. Proposed alterations to buildings located within NDODs are subject to "small project review" (SPR) if the proposed alteration is "visible from a public street or public open space." Id. at § 80E-2(1)(b)(iii). The BRA consistently interprets this to mean "visible" from the front entrance on the public way. When the BRA determines that the proposed alteration is not "visible," and thus that the SPR does not apply, and the BRA finds no zoning violations in the application for the proposed alteration, the inspectional services department (ISD) may issue the building permit as of right and no variance is necessary.
In 2011, the Andersens applied for a building permit for an addition to their home. After review by the ISD, the application was rejected as noncompliant with the code. The Andersens revised their plans and reapplied for a building permit. The BRA concluded that the proposed addition to the Andersens' home was not visible from the street in front of the property and thus that SPR did not apply. On January 12, 2012, ISD approved the Andersens' application and issued an as-of-right building permit.
In February, 2012, Holmes appealed to the BOA. After a hearing, the BOA denied Holmes's appeal, finding that the ISD did not issue the permit in error. The final decision of the BOA was filed with the commissioner of the ISD on October 26, 2012.
Holmes then filed a complaint in the Superior Court challenging the BOA's decision and claiming jurisdiction under § 11 of the Boston zoning enabling act, St. 1956, c. 665, § 11, as amended, and G. L. c. 231A. The BRA and the Andersens filed separate motions to dismiss. In January, 2014, a Superior Court judge allowed the BRA's motion in so far as it claimed the enabling act did not provide an appeal from the BRA's recommendation regarding SPR, but denied the motion in so far as it claimed that Holmes did not have standing under G. L. c. 231A to challenge the BRA's interpretation of the code. The judge also denied the Andersens' motion to dismiss.
In his complaint, Holmes alleged: "The construction under this permit adversely affects the Plaintiff in that it affects the light and air his property receives, limits his ability to enjoy the use of his property and lowers the value of his property and he is a person aggrieved by the decision of the BOA, ISD and BRA failing to enforce provisions of the Code."
In October, 2014, a second Superior Court judge, acting on cross motions for summary judgment, held that Holmes lacked standing because his alleged injuries (loss of light and air, and diminution in property value) are not "specific interest[s] that the [NDOD code provision] . . . is intended to protect." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 30 (2006). In addition, the judge noted that Holmes holds no easement for light and air, see G. L. c. 187, § 1, and that his mere allegations of loss of light and air were insufficient to render him a "party aggrieved" for purposes of establishing standing. See Boothroyd v. Zoning Bd. of Appeals of Amherst, 449 Mass. 333, 342 (2007) ("[U]nsubstantiated claims or speculative personal opinions do not constitute a sufficient predicate on which to confer standing" [citation omitted]). As to diminution of property value, the judge noted that the defendants had produced evidence that showed Holmes's property had increased in value, whereas the plaintiff stated at his deposition that he believed the property had depreciated in value, but he had no evidence to support this contention. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 121-122 (2011) (no standing where abutters failed to put forth credible evidence to support allegation of harm).
On appeal, Holmes asserts for the first time that the gravamen of his complaint concerns density, an issue noticeably absent from his complaint. Holmes states in his brief that, in his filings below, he "had included Affidavits and deposition testimony discussing the size, placement[,] and effect of the . . . Andersens' construction alleging more than just loss of air and light and diminution of property value, and making a broader argument that he should be protected from excessive density and its effects caused by the . . . Andersens' construction."
According to his brief: "This is a case of appropriate density in an old, historic[,] and tightly knit community and physical environment. It is nothing more or nothing less despite sometimes arcane, lengthy[,] and parsed legal argument."
Discussion. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Nelson v. Salem State College, 446 Mass. 525, 530 (2006), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
As an initial matter, contrary to his assertion, the record does not demonstrate that Holmes advanced his contention regarding excessive density in his complaint or before the summary judgment judge. We therefore do not consider it. See Bruno v. Board of Appeals of Wrentham, 62 Mass. App. Ct. 527, 531-532 (2004) (citations omitted) ("[W]e cannot ignore the fact that [Holmes] not only failed to raise this argument below, [he] also has failed to call to our attention any circumstances that would justify our departure from a fundamental principle of appellate practice, viz., that we need not consider issues raised for the first time on appeal").
At one point, in the reproduced portion of his deposition testimony, Holmes states: "I think being in an overlay district, the project needs to also adhere to whatever guidelines are set forth in that." It is not clear, however, that this portion of deposition testimony was in fact before the judge below or, if it was, that it was called to her attention. In any event, Holmes did not identify on the record that one of his concerns was the project's effect on density.
In its present posture, as the BRA asserts, the Andersens' building permit was issued as of right. Apart from bald statements that the BRA did not properly interpret the "visibility" requirement, Holmes has not identified any zoning violation which would support his allegation that he is a person aggrieved. "A 'person aggrieved' is one who 'suffers some infringement of his legal rights,' [and,] [o]f particular importance, the right or interest asserted by a plaintiff claiming aggrievement must be one that the [code] is intended to protect, either explicitly or implicitly." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700 (2012) (citations omitted). As the BRA also argues, the cases upon which Holmes now purports to rely to establish standing concern challenges to variances granted from zoning requirements intended to protect interests such as density, light, and air. See Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8, 11-13 (2009) (variance; decreased light and property value related to density interest protected by zoning law), S.C., 81 Mass. App. Ct. 394 (2012). See also Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912, 912 (2003) (variance; increased noise and artificial light, and decreased backyard privacy related to objectives of density regulation at issue); McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930, 930-931 (2004) (variance; diminishment of light and air, and obstruction of view related to floor area ratio and rear yard limitations in zoning code); Central St., LLC v. Zoning Bd. of Appeals of Hudson, 69 Mass. App. Ct. 487, 492 (2007) (variance; diminution of property value related to frontage requirement in zoning provision); Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752, 757, 761 (2010) (variance; elimination of light, air, and views, and diminished property value were interests recognized by zoning enabling act); Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 518-521 (2011) (variance; diminished view related to density and dimensional provisions of zoning by-law). Holmes has identified no such interest here; the sole thrust of his argument below was that the Andersens' addition was not in character with the buildings around it.
If the BRA's interpretation of visibility is correct, Holmes's argument respecting the lack of SPR fails because, in such circumstances, no SPR would be necessary.
Conclusion. For the above reasons, we conclude that Holmes does not have standing to challenge the BOA's decision upholding the issuance of the permit.
Judgment affirmed.
By the Court (Green, Vuono & Meade, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 3, 2016.