Opinion
21-P-1070
11-28-2022
MARILYN ARSEM v. RITTA HORSLEY & another.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Marilyn Arsem appeals from a judgment, after a bench trial, affirming a decision of the City of Boston Board of Appeal (board) granting five variances to Ritta Horsley. Arsem raises three issues on appeal. First, Arsem argues that the judge erred in concluding that she lacked standing. Second, she contends that the judge erred in requiring her to present her evidence first at trial, because Horsley bore the burden of both persuasion and production. Third, she argues that the judge erred in affirming the grant of the variances. Because we conclude that Arsem lacked standing, we affirm without reaching her other arguments.
The evidence permitted the judge to find the following. Horsley has owned 16 Robeson Street (where Horsley lives) and 16R Robeson Street (an adjacent lot which has essentially functioned as Horsley's extended back yard) since 1989. The only structure on 16R Robeson is a garage that both parties agree is dilapidated. 16R Robeson does not front Robeson Street and only has 5.89 feet of frontage on nearby Rocky Nook Terrace, a cul-de-sac densely populated with multifamily residences.
The two lots -- though adjoining -- have been assessed separately for tax purposes for the duration of Horsley's ownership.
In late 2018, Horsley sought approval from the Planning and Zoning Division of the Boston Inspectional Services Department to construct a single-family residence on 16R Robeson, using and extending her existing driveway for access to the proposed structure from Robeson Street. Her request was denied because the proposed structure violated the Boston zoning code (code); Horsley appealed to the board, seeking five variances to construct the residence on 16R Robeson. After a public hearing, presentation of evidence, and a site visit, the board granted the variances to Horsley on June 11, 2019, subject to two provisos, the first of which required Horsley to undergo a "design review with attention to screening and buffering" and the second of which is not pertinent to this appeal.
Horsley's intended purpose is that her daughter reside in the proposed structure on 16R Robeson to help care for Horsley as she ages.
The proposed structure's five zoning code violations include: insufficient space to meet off-street parking and loading requirements, two or more dwellings built on the same lot, insufficient lot frontage, insufficient rear yardage, and insufficient front yardage.
Arsem, the owner of an abutting property at 14 Rocky Nook Terrace, then filed, pursuant to § 11 of the Boston zoning enabling act, an action in Superior Court challenging the board's decision. At trial, Arsem testified to her concerns about how the proposed structure would affect her directly (including loss of privacy, loss of green space, increased noise, decreased parking, decreased access by emergency vehicles, and that the proposed development is not within the neighborhood's character). The proposed structure on 16R Robeson would sit twenty-one feet from Arsem's home, and she expressed uncertainty that there would be enough space between the structures to plant vegetation to enhance privacy.
Arsem specifically mentioned concerns about the ability of city snowplows to plow Rocky Nook Terrace when cars are parked on it.
Another direct abutter of 16R Robeson, Claire Conley, also testified that she was concerned with the possibility of increased construction noise, loss of privacy, and decreased street parking on Rocky Nook Terrace.
Horsley's sole witness was Eugenio Fernandez-Ventosa, the architect she hired to design the proposed structure at 16R Robeson. In selecting the structure's site, Fernandez-Ventosa testified that the rationales were to respect the urban fabric of the neighborhood, provide the best separation between the surrounding properties, provide the best "life safety separation," provide proper vehicular access by way of Robeson Street to assuage the concerns of the residents of Rocky Nook Terrace, and respect the location of existing trees. He also testified that the proposed structure would be three feet further from Arsem's property than initially planned.
After reviewing the evidence presented at trial, the judge found that Arsem did not have standing to challenge the board's decision, and -- alternatively -- that the board's decision was based on legally tenable grounds. Specifically, she found "the defendant successfully rebutted the plaintiff's presumption of standing" at trial, and that "Arsem did not present any evidence to support a finding that she suffers any harm that is more than minimal or any different from the generalized concerns." The judge also determined Arsem's concerns were not particularized because they were generally shared by Claire Conley.
Abutters, such as Arsem, "are entitled to a rebuttable presumption that they are 'aggrieved' persons under the Zoning Act and, therefore, have standing to challenge a decision of a zoning board of appeals." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700 (2012), citing G. L. c. 40A, § ll. "Once a defendant in a § 17 appeal challenges the plaintiff's standing and offers evidence to support the challenge . . . the jurisdictional issue is to be decided on the basis of the evidence with no benefit to the plaintiff from the presumption." Barvenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 131 (1992). See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570, 573 (2016), quoting 81 Spooner Rd., LLC, supra at 702 (abutter's presumption of aggrievement may be rebutted "by showing that, as a matter of law, the claims of aggrievement raised by an abutter . . . are not interests that the Zoning Act is intended to protect"); Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 118 (2011) ("A party challenging the presumption of aggrievement must offer evidence warranting a finding contrary to the presumed fact" [quotations and citation omitted]). "Speculation and conjecture are not evidence, and in any event, more than a 'minimal or slightly appreciable' harm is required." Murchison v. Zoning Bd. Of Appeals of Sherborn, 485 Mass. 209, 215 (2020). "At that juncture, . . . [s]tanding essentially becomes a question of fact for the judge." Picard, supra at 574, quoting 81 Spooner Rd., LLC, supra at 701. See Kenner, supra at 120. "On appellate review, the judge's findings of fact will not be set aside unless they are 'clearly erroneous' or there is 'no evidence to support them.'" Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383 (2009) (Wendy's), quoting DiGiovanni v. Board of Appeals of Rockport, 19 Mass.App.Ct. 339, 343 (1985).
Although the city of Boston has a zoning enabling act separate from G. L. c. 40A, which more generally applies to the other municipalities in Massachusetts, courts "import the teachings of decisions under G. L. c. 40A to cases arising under the Boston act and the code" when sections of the Boston act "much resemble analogous sections in G. L. c. 40A." McGee v. Board of Appeal of Boston, 62 Mass.App.Ct. 930, 930 (2004). "Section 11 of the [Boston zoning] enabling act confers standing on any person aggrieved by a decision of the board. . . . This language is identical to that in G. L. c. 40A, § 17, and is subject to the same interpretation" (quotation and citation omitted). Porter v. Board of Appeal of Boston, 99 Mass.App.Ct. 240, 241 (2021).
Arsem is a direct abutter of 16R Robeson entitled to a presumption of standing to challenge the board's decision to the extent it infringed on interests protected by the Boston zoning enabling act. See 81 Spooner Rd., LLC, 461 Mass. at 700, citing Kenner, 459 Mass. at 120 ("right or interest asserted by a plaintiff claiming aggrievement must be one that the Zoning Act is intended to protect, either explicitly or implicitly"). Some of Arsem's concerns (such as the reduction in green space and the design of the proposed structure) are not such protectable interests. See Barvenik, 33 Mass.App.Ct. at 133 ("possible impairment of aesthetics or neighborhood appearance, . . . [and] the loss of open or natural space are [both] considered insufficient bases for aggrievement under Massachusetts law"). In assessing whether Arsem has standing, we accordingly only consider her concerns regarding legally protected interests: loss of privacy, increased noise, decreased parking, and decreased accessibility for emergency vehicles.
As to those protectable interests, Horsley put forth sufficient evidence to rebut Arsem's presumption of standing by showing that the concerns were speculative. See Kenner, 459 Mass. at 121 ("Aggrievement requires a showing of more than minimal or slightly appreciable harm"); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996) ("The injury must be more than speculative"). Specifically, Horsley produced evidence showing the new house would be accessible from Robeson Street rather than from Rocky Nook Terrace. Apart from conjecture, there was no reason to think that the mere addition of the new residence, accessed solely from Robeson Road, would increase parking on Rocky Nook Terrace and thereby reduce emergency vehicle access on Rocky Nook Terrace. See Murchison, 485 Mass. at 215 (requiring more than speculation and conjecture to establish plaintiff's particular harm). Similarly, in light of the board's condition regarding screening and buffering, Arsem's concerns about privacy and noise were also speculative. See J_d. See also Bertrand v. Board of Appeals of Bourne, 58 Mass.App.Ct. 912, 912 (2003) (concerns about privacy sufficient to find standing if not "ill-founded or speculative"). Moreover, the proposed structure would be further away from Arsem's home than initially planned -- leaving more room for screening and buffering measures. See Kenner, 459 Mass. at 118 (presumptive standing rebutted if defendant offers evidence that warrants finding contrary to presumed aggrievement).
Because Horsley adequately rebutted the presumption of standing, "[s]tanding essentially [became] a question of fact for the judge." Picard, 474 Mass. at 574, quoting Kenner, 459 Mass. at 119. We will not set aside the trial judge's findings of fact unless they are clearly erroneous or unsupported by the evidence presented. See Wendy's, 454 Mass. at 383. Here, the judge's finding that "Arsem did not present any evidence to support a finding that she suffers any harm that is more than minimal or any different from the generalized concerns" was well supported by the evidence. Although Arsem testified to her concerns about the location of the proposed structure, she did not put forth any evidence to show that those concerns exceeded mere speculation. See Murchison, 485 Mass. at 215. Likewise, as we have already noted, she did not present evidence that the project would result in increased parking on Rocky Nook Terrace and decreased emergency vehicle access. Similarly, her concern about noise from house parties in the neighborhood was not tied to evidence that Horsley's adult daughter's family would contribute to that noise. Finally, although Arsem opined that the setback variances would prevent screening between the two properties, her opinion did not include an explanation how or why twenty-one feet would be insufficient space for vegetative screening, nor did it account for the board's condition that required Horsley to undergo a design review focusing on screening and buffering.
To the extent the judge concluded that Arsem's concerns were generalized simply because they were shared by another neighbor, that analysis was flawed. A person does not lose standing simply because another person also has standing. See 81 Spooner Rd., LLC, 461 Mass. at 697 n.10, and cases cited (only one party must be aggrieved to establish standing to challenge zoning decision).
For all of these reasons, the judge did not err in concluding that Arsem lacked standing.
We deny Horsley's request for appellate fees and costs. See Abuzahra v. Cambridge, 486 Mass. 818, 829 (2021), quoting Symmons v. O'Keeffe, 419 Mass. 288, 303 (1995) (appellate courts "are hesitant to deem an appeal frivolous and grant sanctions except in egregious cases").
Judgment affirmed.
Wolohojian, Blake & Desmond, JJ.
The panelists are listed in order of seniority.