Opinion
11-P-429
03-02-2012
DEWITT P. DAVENPORT, trustee v. BOARD OF APPEALLS OF YARMOUTH & another.
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
The plaintiff appeals from an adverse judgment entered after a de novo bench trial in the Superior Court. He raises three issues: first, that the trial judge abused his discretion in denying his motion for a continuance of the trial date; second, that the trial judge erred in concluding that he lacked standing; and third, that the trial judge's conclusion on the merits was wrong as a matter of law. We affirm.
After the defendants moved to dismiss the complaint on the ground that the plaintiff lacked standing because he was not 'aggrieved,' the plaintiff retained an expert who provided an opinion that the plaintiff's land would lose value as a result of the proposed increased use of the adjacent golf course. The expert's opinion was prepared in sufficient time for it to be submitted in response to the defendants' motion to dismiss. That motion was set for argument several months later. In the interim, the plaintiff moved for summary judgment. The summary judgment motion was scheduled for the same date.
Both motions were denied without prejudice after hearing because the judge concluded that the issue of standing (raised in the defendants' motion to dismiss) would best be resolved after a trial. At the pretrial conference, the parties agreed to a trial date of August 20, 2010, 'citing hardship to the Kings Way Trust property owners [the defendants] if further delayed.' Also at the conference, the parties informed the judge that their respective experts would testify in accordance with their previously disclosed affidavits.
On August 12, 2010, the plaintiff moved to continue the trial date, stating that he had recently learned that his expert would not be ready to testify on August 20. The judge denied the motion for continuance, but also ruled that 'reasonable accommodation to [the] expert's schedule may be considered by the Court, as this is a non-jury trial.' The plaintiff thereafter did not seek an accommodation for the expert's schedule. However, he moved for reconsideration, seeking a two-month continuance of the trial. That motion was denied.
'Decisions on requests for extension of time are reviewed for an abuse of discretion.' Lawrence Sav. Bank v. Garabedian, 49 Mass. App. Ct. 157, 161 (2000), citing Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 378 (1975). 'Abuse of discretion' is a broad standard; it generally examines whether a judicial decision rested on mere whimsy or caprice, and has been described as a view or action 'that no conscientious judge, acting intelligently, could honestly have taken.' Massachusetts Assn. of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 266 (2001), quoting from Davis v. Boston Elev. Ry., 235 Mass. 482, 497 (1920).
We see no abuse of discretion here. As the judge explained in his decision, the parties had agreed to the trial date and, at the pretrial conference, had stated that the experts would testify in accordance with affidavits that had already been prepared, exchanged, and submitted. The judge was prepared to make an accommodation for the expert's schedule, but the plaintiff never sought such relief. The judge was not required to continue the agreed-upon trial date by two months where no explanation was given as to why the expert would not be prepared to testify on the agreed-upon date, or what would be accomplished by providing the expert more time before his testimony. As noted above, the parties had already informed the judge that the experts would testify to what they had previously stated in their affidavits.
The defendant next argues that the judge erred in concluding, after trial, that he lacked standing. Under G. L. c. 40A, § 17, '[o]nly a 'person aggrieved' may challenge a decision of a zoning board of appeals.' Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). 'Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption [that] they are 'persons aggrieved." Ibid. However, where (as here) an abutter's presumption of standing is challenged, 'the jurisdictional question is decided on 'all the evidence with no benefit to the plaintiffs from the presumption." Ibid., quoting from Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957). 'Once the presumption is rebutted, the burden rests with the plaintiff to prove standing [i.e., aggrievement], which requires that the plaintiff 'establish -- by direct facts and not by speculative personal opinion -- that his injury is special and different from the concerns of the rest of the community." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 118 (2011), quoting from Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 33 (2006).
The determination of a party's standing under G. L. c. 40A, § 17, is 'essentially a question of fact for the trial judge,' as to whether the plaintiff has put forth credible evidence to substantiate claims of injury to legal rights special and different from the community at large. See Marashlian, 421 Mass. at 721; Butler v. Waltham, 63 Mass. App. Ct. 435, 440 (2005). Credible evidence has qualitative and quantitative components. Ibid. at 441. 'Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made.' Ibid. 'Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action. Conjecture, personal opinion, and hypothesis are therefore insufficient.' Ibid. '[A] judge's finding that a person is or is not aggrieved will not be set aside unless the finding is clearly erroneous.' Id. Here, the judge credited the testimony of the defendant's expert that the proposed increase in rounds of golf would have no negative impact on the plaintiff's lot. The judge also credited the expert's opinion that there would likely be a diminution in value if golf were discontinued at King's Way. By contrast, although the judge accepted that the plaintiff had sufficient expertise to offer an opinion as to the value of his property, he rejected the defendant's concerns about potential discourteous behavior by 'public' players as being general in nature and wholly speculative. The judge did 'not credit the opinion of the plaintiff that his particular lot will suffer a diminution in value. Beyond self interest, the plaintiff did not provide a reliable basis for his opinion.' We see nothing in the record that would lead us to conclude that the judge's ultimate conclusion, or his subsidiary factual findings, was clearly erroneous.
Concluding as we do on the issue of standing, we do not reach the plaintiff's argument that the judge erred in affirming the decision of the zoning board on its merits.
For the reasons set forth above, we affirm the judgment of the Superior Court.
So ordered.
By the Court (Green, Sikora & Wolohojian, JJ.),