Opinion
SUCV2017-761-G 138037
09-18-2017
Carl Tremblay et al. [1] v. Christine Araujo et al. [2]
MEMORANDUM OF DECISION AND ORDER ON CITY OF BOSTON ZONING BOARD OF APPEALS' MOTION TO DISMISS
Paul D. Wilson, Justice
Plaintiffs are neighbors of land (the " Property" ) on which Defendant WonderGroup, LLC proposes an 18-unit townhouse development. In this lawsuit, they appeal many variances granted by the Defendant City of Boston Zoning Board of Appeals (the " Board" ). They also raise a spot zoning challenge to the Board's decisions to grant those variances.
The Board has moved to dismiss. I heard oral argument on September 7, 2017. I will now allow the Board's motion in part and deny it in part.
1. The Variance Appeal
In Count I of the Complaint, Plaintiffs appeal the Board's grant of variances to WonderGroup. The Board mounts two attacks on this count, first asserting that Plaintiffs lack standing to bring a zoning appeal, and also contending that, even if Plaintiffs have standing, many of their claims of aggrievement are not a proper subject for this appeal.
a. Standing
The Boston Zoning Enabling Act (the " Act" ) provides, " Any person aggrieved by a decision of said board of appeal . . . may appeal to the Superior Court." St. 1956, c. 665, § 11 (as amended). The Board asserts that the allegations in the Complaint are insufficient to demonstrate that Plaintiffs are " person[s] aggrieved" and therefore entitled to bring this appeal.
Plaintiffs argue that the Board has already determined that they are persons aggrieved, because it sent each of them notice of its hearings on the variance applications. Plaintiffs base this argument on Section 8 of the Act, which provides that the Board shall send such notice " to the owners of all property deemed by said board of appeal to be affected thereby." Without saying so explicitly, Plaintiffs are really arguing that the word " affected" in Section 8 of the Act means the same thing as the word " aggrieved" in Section 11. Plaintiffs acknowledged that " no reported case . . . has . . . considered or discussed the argument raised by Plaintiffs" in this regard. Plaintiffs' Opposition at 5.
Plaintiffs' argument suffers from at least two flaws. First, the legislature chose to use two different words in relatively close proximity in the Act, and therefore likely had two different meanings in mind. Second, if the Board's decision to notify a neighbor about a variance hearing determined whether a particular neighbor had standing to file an appeal of the Board's ultimate variance decision, then the Board, not the Superior Court, would decide who had standing to appeal its decision to court, a situation that would permit an unscrupulous board to manipulate standing. If the Board disfavored a project but was reluctant, perhaps for political reasons, to kill the project itself, the Board could spread its notifications far and wide to invite appeals. On the other hand, if it did not want its decision appealed, the Board could choose to send notifications to very few neighbors. For these reasons, I decline Plaintiffs' invitation to find that they have standing simply because the Board sent them notice of the variance hearing.
No one suggests that the Board has engaged in any such manipulation here; I simply describe a hypothetical possibility.
Guidance concerning standing under the Act, which governs variance appeals in the City of Boston, can be found in cases applying M.G.L.c. 40A, § 17, which governs such matters in the rest of Massachusetts. The " person aggrieved" language of Section 11 of the Act is identical to the language of section 17 of Chapter 40A, and our appellate courts have therefore " look[ed] beyond Boston cases to determine the meaning of aggrieved status" under the Act. Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass.App.Ct. 274, 275, 473 N.E.2d 716 (1985), citing Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 432-33, 86 N.E.2d 920 (1949). I will do so as well.
Under M.G.L.c. 40A, § 17, a presumption of standing arises in favor of direct abutters to the subject property, as well as abutters to abutters within 300 feet of the property line. See, e.g., Watros v. Greater Lynn Mental Health & Retardation Ass'n, Inc., 421 Mass. 106, 653 N.E.2d 589 (1995). By this measure, the Board contends, three of the five Plaintiffs do not qualify for a presumption of standing. The Board concedes that Plaintiffs Lees and Bell, however, share a home that abuts an abutter to the Property. The Complaint does not say whether the Lees/Bell property is within 300 feet of the WonderGroup property line, although Plaintiffs state as much in their Opposition, at 8.
The Complaint alleges, incorrectly, that " Plaintiffs are abutters to the Property." Complaint ¶ 31. Although normally I would accept the allegations of the Complaint as true when deciding a motion to dismiss, I decline to apply this rule to an allegation that even Plaintiffs have conceded, both in their Opposition and at oral argument, is not accurate.
The Board argues that the proximity of the Lees/Bell property to the WonderGroup property does not end the analysis, however. According to the Board, the Complaint must also allege specific injuries to zoning-protected interests particular to Plaintiffs and not to the rest of the community. See, e.g., Epstein v. Board of Appeal of Boston, 77 Mass.App.Ct. 752, 756, 933 N.E.2d 972 (2010). The Complaint here, according to the Board, fails to do this.
The Board has correctly stated the ultimate test to be applied in determining standing. However, Plaintiffs Lees and Bell are entitled to their presumption of standing until a defendant " challenges a plaintiff's status as an aggrieved person and offers evidence supporting his or her challenge." 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline, 461 Mass. 692, 701, 964 N.E.2d 318 (2012), quoting Watros, 421 Mass. at 111. The Board has offered no " evidence" challenging the presumption, instead merely suggesting that the allegations of the Complaint are insufficient to allow Lees and Bell to claim it. The Board's failure to offer evidence at the motion to dismiss stage is not surprising, and, indeed, it is common for standing challenges to be resolved on summary judgment, after a proponent of a variance has gathered such evidence, either by discovery of the plaintiffs or by expert affidavits.
In any event, the Complaint does allege various " significant adverse effects," Complaint ¶ 33, and it is possible to read the Complaint as suggesting that a few of these impacts will be felt particularly and specifically by these Plaintiffs in a manner different from the impact on the rest of the neighborhood. For example, the Complaint alleges that safety issues will arise because the entrance to Faulkner Hospital is located on Allandale Street, the street on which all Plaintiffs live, " in close proximity to the Property's driveway." Id. The Complaint also mentions that project will create drainage problems for " the immediate neighborhood," which could be read as an indication that Plaintiffs' parcels, closer to the Property than many of their neighbors, will be particularly affected.
" The courts should not define aggrievement narrowly." Epstein, 77 Mass.App.Ct. at 756. That is especially so at the motion to dismiss stage, where Plaintiffs are to be given the benefit of every possible doubt. See Vranos v. Skinner, 77 Mass.App.Ct. 280, 287, 930 N.E.2d 156 (2010). Therefore, even if presumptively-aggrieved Plaintiffs such as Lees and Bell must plead, as well as prove, injury peculiar to their property, I find that they have done so in this Complaint. Because I find that the allegations of the Complaint are sufficient to suggest that Plaintiffs Lees and Bell have standing, I see no point to further analyzing, at the motion to dismiss stage, whether the allegations of standing are sufficient as to the other three Plaintiffs.
My decision today merely concerns whether the allegations of the Complaint, taken as true, make out a case for standing. The Board is free to renew its standing argument, of course, at the summary judgment stage.
b. Zoning-Protected Interests
Having decided not to dismiss Count I for lack of standing, I turn to the Board's second attack on that count. " [T]he right or interest asserted must be one that the statute under which plaintiff claims aggrievement intends to protect." Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20, 27-28, 849 N.E.2d 197 (2006). The Board contends that many of the adverse impacts alleged in the Complaint concern interests that are not protected by zoning laws, and therefore cannot be the subject of a zoning appeal.
The Board is correct as to at least three, and perhaps four, of the eight " significant adverse effects" cited in the Complaint. The " environmental damage to the wetlands which abut the Property and contain one of the last vernal pools in Boston," Complaint ¶ 33(f), cannot be the subject of a zoning appeal, because wetlands and vernal pools are protected by an entirely different legal regime under the state Wetlands Protection Act, M.G.L.c. 131, § 40. Nor can these Plaintiffs litigate " the loss of view for hikers in the Allandale Woods, which abuts the Property," Complaint ¶ 33(g), because Plaintiffs have standing, if at all, only to litigate impacts specific and particular to their properties. In addition, Plaintiffs cannot litigate here the Board's alleged " preempting of land more suitable for a single-family residential subdivision consisting of five lots," Complaint ¶ 33(h); a zoning appeal focuses on the applicant's proposal and the Board's decision as to that proposal, rather than on alternative development schemes that neighbors might prefer. Finally, Plaintiffs can litigate the " deforesting of the Property," Complaint ¶ 33(e), only to the extent that this deforesting has a specific effect on them particularized to their own properties, an effect that is not obvious from this Complaint.
The other four alleged " significant adverse effects" concern " changing the entire character of the neighborhood from that of single-family homes . . .," Complaint ¶ 33(a), which, read indulgently, could qualify as a " density" impact appropriate for a zoning appeal under 81 Spooner Road, 461 Mass. at 704; " dangerous ingress and egress," Complaint ¶ 33(b); traffic issues, Complaint ¶ 33(c); and drainage problems in the immediate neighborhood, Complaint ¶ 33(d). These four alleged impacts, if proven and if particular to Plaintiff's properties, would relate to zoning-protected interests and therefore would be appropriate fodder for this appeal.
For these reasons, I will allow the motion to dismiss the claims relating to the " significant adverse effects" alleged in paragraphs 33(f), (g), and (h), concerning wetlands and vernal pools, views from Allandale Woods, and the " preempting" of a five-lot subdivision. I will deny the motion with regard to the impact alleged in paragraph 33(e) concerning deforestation, to permit Plaintiffs to attempt to prove that deforestation of the Property has an impact particular to their properties. I will also deny the motion as to the other significant adverse impacts alleged, which do relate to zoning-protected interests and therefore can be litigated in this zoning appeal.
2. Spot Zoning
In Count II, Plaintiffs bring a spot zoning claim. Spot zoning occurs when a parcel is placed in a zoning district that is different from nearby, indistinguishable parcels " all for the economic benefit of the owner of that lot." W.R. Grace & Co.-Conn. v. Cambridge City Council, 56 Mass.App.Ct. 559, 570, 779 N.E.2d 141 (2002).
By definition, spot zoning can only occur when the legislative body that enacts the relevant zoning laws votes to zone (or rezone) land. See, e.g., Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 223, 202 N.E.2d 777 (1964) (defining the substantive issue in that case as " whether an amendment adopted in 1961 to the zoning by-law, changing five acres (the locus) of a forty-five-acre farm from a general residence and farm district to a local business district," is spot zoning); Rando v. Town of North Attleborough, 44 Mass.App.Ct. 603, 692 N.E.2d 544 (1998) (considering whether action of Town Meeting to amend a zoning bylaw constituted spot zoning). That is not what happened here; instead, a permit-granting authority made a decision to allow variances from the otherwise-applicable zoning law.
The Supreme Judicial Court long ago ruled that a neighbor cannot make a spot zoning claim because of special permits granted by a permit-granting authority. Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147, 355 N.E.2d 461 (1976). Taking pains to point out the difference between a permitting decision and a legislative enactment, the court stated, " The action of the board did not reclassify the land or in any way amend the by-law with respect to the uses which were permitted in a residence district. The board did not usurp the legislative power of the town in granting the special permits . . ." Although Kiss concerned special permits, this reasoning applies with equal force to the variances at issue in today's case. Therefore Count II, the spot zoning claim, fails as a matter of law, and must be dismissed.
Conclusion and Order
The City of Boston Zoning Board of Appeals' Motion to Dismiss is ALLOWED IN PART and DENIED IN PART. Those portions of Count I that rely on the alleged impacts cited in Paragraphs 33(f), (g), and (h) are DISMISSED. Count 2 is DISMISSED in its entirety. The motion is otherwise DENIED.