Opinion
10-P-1817
09-15-2011
CHARLES BROOKS & others [FN1] v. CHELMSFORD HILLSIDE GARDENS, LLC, & another. [FN2]
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At the conclusion of two-day bench trial, a judge of the Land Court concluded that the plaintiffs, owners of businesses that abut a low- and moderate-income housing development proposed under the expedited procedure of G. L. c. 40B, § 21, lacked standing to challenge the validity of the comprehensive permit approved by the board of appeals (board) of the town of Chelmsford (town). He ordered entry of a conforming judgment of dismissal for lack of jurisdiction. Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974). For the following reasons, we reverse the judgment and remand the case to the Land Court for consideration of the merits.
Facts. Pursuant to G. L. c. 40B, § 21, the board approved a comprehensive permit for defendant Chelmsford Hillside Gardens, LLC (Hillside Gardens), as the proposed developer of a forty-four-unit residential project on approximately five acres of land located at 311 Littleton Road (locus) in the town. In proceedings at the board, the plaintiffs opposed authorization of the project. Plaintiff Charles Brooks owns three commercial condominiums on land directly abutting the east side of the locus at 4 Kidder Road. At one of those buildings he operates Brooks Precision Machining, a manufacturer of defense and medical supplies. The second plaintiff consists of C&G Realty Trust (trust) in the persons of trustees Craig D. Faretra and Guy Faretra. The trust owns property also directly abutting the locus on the east side, at 6 Kidder Road, a site immediately north of the Brooks property.
At the trust property, the Faretra brothers operate the business of Chelmsford Crane Service, Inc. (Chelmsford Crane). Chelmsford Crane leases mobile truck cranes and trucks to the construction industry, general contractors, marine and demolition contractors, and to emergency rescue services. Chelmsford Crane owns four cranes which are stored on the trust property. The cranes extend from thirty-five to 250 feet, and are typically stored in a vertically extended position stretching upward for one hundred to 150 feet at a sixty- to seventy-degree angle. All three properties -- the locus, the Brooks site, and the trust site -- are situated within a commercial roadside zoning district established under the town's by-laws.
In the Land Court, the plaintiffs pressed two primary arguments against the approval of the comprehensive permit: (1) that the proposed residential development would function incompatibly with their preexisting commercial activities because those activities generated problems of noise, odor, traffic, lighting, and safety, likely to cause friction and continuous, costly legal conflicts resulting in increased commercial insurance premiums for the two businesses; and (2) that the defective stormwater runoff management design of the project would cause physical trespass on to the Brooks property and would create an elevated groundwater level beneath the surfaces of both business properties likely to damage their land and to create a continuing risk of such damage.
The judge rejected both contentions as a basis of standing. He regarded the testimony of the plaintiffs' expert, a civil engineer, upon each point as speculative.
Analysis. The judge accurately stated the axioms and corollaries of standing. Several apply closely to the evidence of our case. A property owner challenging a decision of a zoning board must assert a 'plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.' Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 492-493 (1989). He must offer 'credible evidence' of a particularized injury. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996) (Marashlian). 'Conjecture, personal opinion, and hypothesis are therefore insufficient.' Butler v. Waltham, 63 Mass. App. Ct. 435, 441 (2005). An especially pertinent corollary here is that the property owner challenging the zoning decision need not submit preponderant evidence of the ultimate merits of his position, but only need offer evidence credible to a reasonable person of a plausible and particularized injury. Marashlian, supra; Butler v. Waltham, supra. The determination of standing proceeds preliminarily to, and separately from, the assessment of the merits. See, e.g., Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208, 209 (2003). In light of those standards, we now examine the evidence of stormwater runoff risk and harm submitted to the judge by the plaintiffs.
1. Stormwater runoff trespass on to the Brooks property. At trial, Hillside Gardens' own project plans showed that a stormwater discharge pipe penetrated the Brooks property and directed water into an existing swale on that property. The judge acknowledged that fact, but negated it with the observations (1) that the plaintiffs' expert witness, civil engineer Thomas Houston, did not offer evidence that the swale was 'newly constructed'; (2) that he had not examined the titles of the Brooks property or the locus; (3) that the plaintiffs had failed 'to satisfy their burden to establish that [the locus] lacks the right to discharge water into the swale on [the] Brooks property'; and (4) that 'such a property right [apparently an easement permitting the intrusion of the pipe and the discharge of the water across the Brooks property] is unlikely the sort of interest that might confer standing under G. L. [c.] 40B.'
None of these observations adequately responds to the reality of the trespass of the discharge pipe and its transported water on to the Brooks property. First, as the plaintiffs point out, 'No Massachusetts court has yet held that G. L. c. 40B abrogates the common law.' Most fundamentally, the plaintiffs do not carry the burden to disprove the existence of an intrusive easement on the part of Hillside Gardens; rather, Hillside Gardens has the burden of proving the existence of such an easement. Second, evidence that the swale was 'newly constructed' is irrelevant. Third, the supposed failure of the plaintiffs' expert to examine the titles of the Brooks property and the locus is irrelevant as well because the plans show clearly the intrusion of the pipe and its contents on to the Brooks property. Finally, the notion that 'such a property right' as the common-law right against trespass 'is unlikely the sort of interest that might confer standing under G. L. [c]. 40B' is cryptic and seemingly unsupportable. As the judge acknowledged earlier in his decision, 'a plausible claim of a definite violation of a . . . private property interest' confers standing, with citation to Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. at 493. For this reason, Brooks established his standing and is entitled to an adjudication of the merits of his claims against approval of the comprehensive permit.
'One who causes an object to be placed on the [property of another] is as liable for trespass as one who enters the land in person.' Nolan & Sartorio, Tort Law § 4.2 (3d ed. 2005). See id. at 69 nn.3-6, and cases cited; Restatement (Second) of Torts §§ 160, 161 (1979).
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2. Groundwater elevation caused by subsurface recharge structure on the locus. Stormwater flooding and its environmental impact constitute recognized aggrievements. See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 28 (2006); Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81, 89 (2007). Both sets of plaintiffs introduced evidence indicating that the subsurface recharge structure of the project was located about one hundred feet from the Brooks property and about 150 feet from the trust property; that the bottom of stone elevation, or bedrock, for this subsurface recharge structure was approximately 3.23 feet above the surface grades of the Brooks and the trust sites; and that the peak elevation of water in the subsurface recharge structure would reach an elevation of 6.75 feet above the surface grades of the adjacent Brooks and trust properties. The plaintiffs offered expert testimony that the proximity and the elevation of the subsurface recharge system in instances of severe storm volume created a risk of heightened groundwater levels on their properties. Hillside Gardens did not offer rebuttal evidence to that testimony.
Additionally, civil engineer Houston provided testimony that pavement at the rear of the trust property was wrinkling or 'alligatoring,' a condition resulting from high groundwater and a soft base. Houston testified that the condition weakened pavement stability. An increase in groundwater elevation could aggravate the problem of pavement stability and generate a problem of imbalance for cranes operating over such a surface.
The judge discounted the subsurface recharge evidence as speculative. For purposes of standing, that conclusion exceeds proper limits, especially in the absence of responsive evidence from Hillside Gardens and in the absence of a more specific explanation by the judge. Again, as the judge noted earlier in his decision, a plaintiff need not establish the ultimate merits of his claim, but need only introduce credible evidence of a plausible claim of a violation of a private property interest. Marashlian, 421 Mass. at 721; Butler v. Waltham, 63 Mass. App. Ct. at 441. The judge determined the ultimate merits of the claim, rather than the preliminary weight of the evidence of an aggrievement.
The plaintiffs' evidentiary offerings upon the issue of potential particularized injury from the subsurface recharge structure on the locus entitle all of them to standing.
Conclusion. For these reasons, we reverse the judgment of dismissal for lack of standing and lack of jurisdiction, and remand the case for adjudication of the merits of the plaintiffs' challenge to the issuance of the comprehensive permit.
So ordered.
By the Court (Mills, Sikora & Rubin, JJ.),