Opinion
11-P-778
03-28-2012
GOODWIN T. SCHRAMM & another v. ZONING BOARD OF APPEALS OF COHASSET & others.
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
This case is before us on cross appeals from a judgment entered in the Superior Court on cross motions for summary judgment. We conclude that the motion judge correctly determined that the summary judgment record adequately supported the plaintiffs' claims to be 'persons aggrieved,' within the meaning of G. L. c. 40A, § 17, but incorrectly concluded that the provisions of G. L. c. 40A, § 16, precluded defendant Cohasset zoning board of appeals (board) from entertaining the appeal of defendants Peter A. Cundall and Ann C. Stenbeck from the building inspector's denial of their application for a building permit. We further conclude that the summary judgment record is inadequate to support the determination by the motion judge of the matters addressed in paragraphs 2 and 3 of the order for judgment. 1. Standing. The motion judge and the parties correctly recognize that, as abutters, the plaintiffs enjoy a rebuttable presumption that they are 'persons aggrieved.' See Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 257-258 (2003). '[T]o rebut the presumption, the defendant must offer evidence 'warranting a finding contrary to the presumed fact." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 34 (2006), quoting from Marinelli v. Board of Appeals of Stoughton, supra at 258. To support standing, 'a 'person aggrieved' . . . must assert 'a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest." Standerwick v. Zoning Bd. of Appeals of Andover, supra at 27, quoting from Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493 (1989). Put another way, the plaintiffs must assert an injury to a cognizable legal interest within the scope of interests the zoning laws are designed to protect, and the interest asserted must be particular to them, rather than common to the community in general. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 118 (2011).
In the present case, the plaintiffs have asserted that the construction proposed in the building permit application submitted by Cundall and Stenbeck will raise concerns for the safe travel of traffic over Newtonville Road, a fifteen-foot wide right of way which furnishes the sole means of access and egress to both properties. Though the plaintiffs did not support their expression of concern with an expert opinion, their particularized description of the concern (that the proposed construction would add at least three vehicles traveling to and from the property on a daily basis, perhaps on multiple occasions, together with delivery and other service vehicles) is plausible and competent lay opinion to support the expressed concern. Though the additional vehicles would not pass in front of the plaintiffs' property, the proposed project would increase the traffic on the very narrow driveway on which both properties rely for access. Cundall and Stenbeck have proffered no affirmative evidence tending to negate the validity of the traffic concerns expressed by the plaintiffs. At least for purposes of summary judgment, the plaintiffs have articulated an adequate basis for standing, and Cundall and Stenbeck have not come forward with evidence to rebut the plaintiffs' presumption of aggrievement. See 81 Spooner Road, LLC vs. Zoning Board of Appeals of Brookline, S.J.C. No. SJC-10929, slip op. (March 20, 2012).
Indeed, though as we discuss below the summary judgment record is inadequate to determine the question, the adequacy of Newtonville Road to support its consideration as a 'street' (for purposes of furnishing the frontage required under the Cohasset zoning by-law) is a matter hotly contested by the parties.
Because the plaintiffs have articulated at least one plausible basis to support their standing, we need not address the arguments Cundall and Stenbeck advance to challenge various other concerns expressed by the plaintiffs.
2. General Laws c. 40A, § 16. The board denied a previous appeal by Cundall and Stenbeck 'without prejudice.' We consider that disposition to be the substantial equivalent of a withdrawal of a petition by the petitioner without prejudice 'with the approval of the special permit granting authority,' as expressly contemplated by the second paragraph of G. L. c. 40A, § 16. In any event, the denial 'without prejudice' did not constitute final and unfavorable action by the board, within the meaning of the first paragraph of that section. Accordingly, the motion judge erred in concluding that the board was without authority to entertain, or to act upon, the appeal.
3. Frontage. In concluding that the subject parcel had the frontage required under the Cohasset zoning by-law, the motion judge was required to resolve two questions: (i) whether Newtonville Road constituted a 'street' within the meaning of the by-law, and (ii) whether the length of frontage of the parcel along Newtonville Road exceeded the minimum of fifty feet required by the by- law. As to the first question, the motion judge appears to have considered what evidence was before the board when it determined that Newtonville Road was such a 'street,' based on the judge's review of copies of minutes of board hearings ostensibly included as part of the summary judgment record; though it contains various plans, the summary judgment record (at least as presented in the record before us on appeal) includes no other evidence concerning the condition or use of Newtonville Road. Ultimately, the motion judge concluded that, based on the evidence before the board, the board's conclusion that Newtonville Road is a 'street' was not unreasonable. On the question of the length of frontage along Newtonville Road, the judge reviewed plans submitted by engineers for the plaintiffs and Cundall and Stenbeck, respectively, which furnished competing calculations of the amount of frontage; ultimately, the motion judge concluded that the board had not been arbitrary or whimsical in favoring the analysis proffered by Cundall and Stenbeck's engineer over that proffered by the Schramms' engineer.
The summary judgment record includes only the plans; it does not include an affidavit or other narrative analysis by either engineer.
The summary judgment record does not support a determination of either question. As the motion judge and the parties all acknowledge, in an appeal pursuant to G. L. c. 40A, § 17, the matter is heard de novo, and the judge is to make independent findings of fact on the basis of the evidence before him. See Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15, 24 (1987). Minutes of the board hearings are hearsay, and do not constitute evidence (except, under the public records exception, as to questions of procedure before the board). See Building Inspector of Chatham v. Kendrick, 17 Mass. App. Ct. 928, 931 (1983). De novo review of the board's decision requires that the trial court accord no deference to the findings made by the board. See Landers v. Board of Appeals of Falmouth, 31 Mass. App. Ct. 939, 940 (1991). Finally, it is axiomatic that a judge may not enter summary judgment where (as, in the present case on the question of the length of frontage) there is conflicting evidence on a material question of fact. See Mass.R.Civ.P. 56, as amended, 436 Mass. 1404 (2002). In the present case, the summary judgment record is simply devoid of competent or undisputed evidence necessary to resolve the two essential questions determined by the motion judge.
4. Conclusion. The motion judge correctly determined that Cundall and Stenbeck did not rebut the plaintiffs' presumption of aggrievement on the basis of evidence in the summary judgment record. Accordingly, so much of the judgment that declares the plaintiffs have standing to proceed as aggrieved persons is affirmed. In all other respects, the judgment is reversed, and the matter is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Cypher, Green & Trainor, JJ.),