Opinion
No. 11–P–1085.
2012-06-28
Kathryn J. BROOKINS & another v. ZONING BOARD OF APPEAL OF BOSTON & others.
By the Court (CYPHER, GREEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiffs Oscar and Kathryn Brookins filed the underlying action, a zoning appeal pursuant to the Boston zoning enabling act (zoning act), on February 22, 2005. The action challenged the validity of ten variances that were granted to the original defendant Pontiac Street Associates, LLC (Pontiac), by defendant Boston zoning board of appeal (board). The basis for standing asserted by the plaintiffs in their complaint was that they “own property at 743 Parker Street and are abutters to an abutter.”
The board and defendant/intervenor MHB Realty, LLC
(MHB), (collectively, the defendants) appeal from a December 31, 2010, order of the Superior Court denying the board's motion to dismiss and granting, in part, the plaintiffs' motion for summary judgment.
Pontiac's successor in title to the properties at issue.
The defendants also appeal from the subsequent denials of the board's motion for reconsideration and MHB's rule 60(a) motion to correct the docket to reflect that a May 31, 2006, dismissal of the claim against Pontiac for plaintiffs' failure to post a surety bond, in fact, applied to all defendants. See Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974).
It is apparent from the language of the judge's order that the “allowance” of the plaintiffs' summary judgment motion was, in effect, a finding that the plaintiffs had standing, and not a ruling on the merits of the variances.
The defendants argue that (1) the Superior Court erroneously found that the plaintiffs have a presumption of standing under G.L. c. 40A, §§ 11 and 17; (2) if such a presumption does not exist, the plaintiffs have not otherwise alleged sufficient injury to confer standing; and (3) the May, 2006, dismissal of the plaintiffs' claims against Pontiac operated as a dismissal of the plaintiffs' claims against all defendants. Because we agree with the defendants that the plaintiffs do not have standing, we vacate the order denying the board's motion to dismiss and allowing, in part, the plaintiffs' motion for summary judgment, and remand for an entry of judgment dismissing the plaintiffs' complaint.
This case has an unnecessarily prolonged and complicated history, and we recite only those relevant facts that arise in our discussion of the issues.
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.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). Where, as here, there are cross motions, the court “assesses the factual materials in the light most favorable to the unsuccessful opposing party.” Epstein v. Board of Appeal of Boston, 77 Mass.App.Ct. 752, 756, 933 N.E.2d 972 (2010). Because a judge does not engage in fact finding when ruling on cross motions for summary judgment, we do not give deference to the judge's decision. See Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass.App.Ct. 245, 248, 921 N.E.2d 121 (2010).
We conclude that the plaintiffs have not shown they are entitled to a presumption of standing. Under the zoning act, only a “person aggrieved” has standing to challenge a decision of a zoning board of appeals. G.L. c. 40A, § 17, as appearing in St.1978, c. 478, § 32. See Barvenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 131, 597 N.E.2d 48 (1992). Abutters and abutters to abutters within 300 feet of the project “are entitled to a rebuttable presumption that they are ‘persons aggrieved.’ “ Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 33, 849 N.E.2d 197 (2006). See G.L. c. 40A, § 11. The court erred in finding that the plaintiffs' unverified claim that they “own property at 743 Parker Street and are abutters to an abutter,” was sufficient to confer a presumption of standing, because being an “abutter to an abutter” without the 300 foot proximity requirement is not, in itself, enough to confer the presumption of standing. See ibid.
In addition to the fact that the plaintiffs failed to allege sufficient facts to give them a presumption of standing by the terms of G.L. c. 40A, §§ 11 and 17, the board in its motion for reconsideration provided evidence by affidavit and public record that the plaintiffs in August, 2009, in fact, sold the property at 743 Parker Street (the property that was alleged by the plaintiffs in their complaint to confer a presumption of standing).
Despite the lack of a presumption, the plaintiffs were still entitled to demonstrate that they otherwise had standing to challenge the decisions of the board. Bradshaw v. Board of Appeals of Sudbury, 346 Mass. 558, 560, 194 N.E.2d 716 (1963). However, we conclude that the plaintiffs have failed to show that the alleged increased level of noise and population density in the neighborhood is, in this case, sufficient injury to confer standing. The plaintiffs have not established, as they must, that their alleged injury is “special and different from the concerns of the rest of the community.” Standerwick, supra, quoting from Barvenik, supra at 132, 597 N.E.2d 48. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 701, 964 N.E.2d 318 (2012). For these reasons, and for the additional reasons stated on pages 28–34 of MHB's brief, we conclude that the plaintiffs do not have standing to bring their claims.
Moreover, it is likely that the Superior Court abused its discretion
in denying MHB's rule 60(a) motion to correct the docket, given the evident intent of the earlier judge to dismiss the claims against all defendants. See Haffey v. Rock, 75 Mass.App.Ct. 686, 689 n. 9, 916 N.E.2d 388 (2009) ( “Obviously, the order endorsed by the first judge is the operative document, and any error in the transposition of the language by a clerk is not controlling”). However, given our conclusion that the plaintiffs lack standing to bring their claims, the issue need not be reached.
A motion for relief under rule 60(a) is properly addressed to the sound discretion of the trial judge, whose decision should not be overturned on appeal except upon a showing of clear abuse of discretion. R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 79, 754 N.E.2d 668 (2001).
The plaintiffs did not have standing to challenge the variances, and as such the Superior Court lacked subject matter jurisdiction over the plaintiffs' action. See Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 703, 695 N.E.2d 650 (1998); Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 125, 944 N.E.2d 163 (2011). We vacate the order of the Superior Court denying the board's motion to dismiss, and allowing (in part) the plaintiffs' motion for summary judgment. This case is remanded to the Superior Court for entry of a judgment dismissing the plaintiffs' complaint against all defendants.
So ordered.