Opinion
No. 15–P–1383.
07-01-2016
47 NEWBURY WORLD REALTY TRUST, v. JAM ENTERPRISES, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This action arises out ofa decision by the city council of Peabody (city council) to grant the defendant, JAM Enterprises, LLC (JAM), a special permit to construct a billboard sign. The plaintiff, 47 Newbury World Realty Trust (Newbury), appeals from a judgment that entered following the allowance of the defendant's summary judgment motion. In granting the motion, a Superior Court judge concluded that Newbury lacked standing to challenge the city council's decision approving the billboard because Newbury was not harmed by that decision. We affirm.
Although an abutter has the presumption of standing, “the plaintiff always bears the burden of proof on the issue of standing”; the “presumption of standing simply shifts to the defendant the burden of going forward with the evidence.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 34–35 n. 20 (2006). Section 17 of G.L.c. 40A, inserted by St.1975, c. 808, § 3, provides that “[a]ny person aggrieved by a decision of the board of appeals or any special permit granting authority” may appeal the decision by bringing an action in the Superior Court. “However, ‘only a limited class of individuals—those whose property interests will be affected—is given the standing to challenge the board's [or special permit granting authority's] exercise of its discretion.’ “ Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 492 (1989), quoting from Green v. Board of Appeals of Provincetown, 26 Mass.App.Ct. 469, 479 (1988), S. C., 404 Mass. 571 (1989).
Here, the plaintiff was not a person aggrieved, and therefore lacked standing, because the claimed injury of loss was not personal to the plaintiff, it was “merely reflective of the concerns of the community.” Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass.App.Ct. 208, 211 (2003).
The plaintiff asserts that the approved billboard would harm two hotels owned by a third party with no relationship to the plaintiff. The plaintiff also has no expert reports or studies that support any harm or other effect JAM'S project has upon the plaintiff's property.
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Judgment entered February 24, 2015, affirmed.