Opinion
10-P-120
08-24-2011
PETER HALLOCK and others v. ZONING BOARD OF APPEALS OF CHATHAM & 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
The plaintiffs, Peter Hallock (Hallock) and Edwin and Mary Anne Hall Deadrick (Deadricks), appeal from a Land Court decision granting summary judgment to defendants Robert and Jayne Kerry Chandler (Chandlers) after determining that the plaintiffs lacked standing under G. L. c. 40A, § 17, and G. L. c. 240, § 14A, to contest a special permit issued by the town of Chatham zoning board of appeals (ZBA). 'We review the Land Court judge's summary judgment decision de novo. Because the judge does not engage in fact finding in ruling on cross motions for summary judgment, we owe no deference to his assessment of the record.' Marhekfa v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 517-518 (2011) (footnote and internal citations omitted). We further observe that in crafting his thoughtful and comprehensive decision, the Land Court judge did not have the benefit of Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 120 (2011), which controls our analysis in significant ways.
I. General Laws c. 40A, § 17. Standing under G. L. c. 40A, § 17, is limited to persons 'aggrieved by a decision of the board of appeals.' In order to be a 'person aggrieved,' a plaintiff 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, 447 Mass. 20, 27 (2006) (citation omitted). Furthermore, '[t]he right or interest asserted by a plaintiff claiming aggrievement must be one that G. L. c. 40A is intended to protect.' Kenner v. Zoning Bd. of Appeals of Chatham, supra. On appeal, the plaintiffs allege that they were aggrieved by the ZBA decision because of 'loss of scenic views; loss of open space; and loss of privacy.'
On appeal the plaintiffs discuss loss of open space and loss of privacy together rather than as two separate issues. As such, we do not analyze each separately.
Hallock, as an abutter, and the Deadricks, as abutters to an abutter within three hundred feet, are 'parties in interest,' and therefore are entitled to a rebuttable presumption that they are 'persons aggrieved' under G. L. c. 40A. Standerwick, supra at 33 n.17. However, the Chandlers put forward evidence in the form of an affidavit from building contractor David Handren that successfully rebuts the presumption of standing based on loss of scenic views and loss of open space and privacy. Watros v. Greater Lynn Mental Health & Retardation Assoc., 421 Mass. 106, 111 (1995). Because the defendants successfully rebutted the plaintiffs' presumption of standing, the plaintiffs 'must establish -- by direct facts and not by speculative personal opinion -- that [their] injur[ies] [are] special and different from the concerns of the rest of the community.' Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129, 132 (1992). 'The injury must be personal to the plaintiff and supported by specific facts.' Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124, 127, (1999).
The Handren affidavit states that '[t]he Chandler house is approximately forty-five degrees southeast of the Deadricks' direct view. The Deadricks' house also is uphill from the Chandler property and approximately 125 feet away . . . .' The affidavit included a photograph taken from the Chandlers' house that depicts the orientation of the Deadricks' house and shows trees that appear to at least partially obscure the view from the Deadricks' property. The Handren affidavit and exhibits provide evidence that, based on observations Handren made from the Hallock property line, '[n]o part of the Chandlers' house is between the lighthouse lamp and any part of the Hallock house. Thus, no matter how much taller the Chandlers' house might become, it would not obstruct Mr. Hallock's view of the Chatham lighthouse light from inside his house, nor diminish the sweep of light through the house.' Instead, Handren noted that the top of the lighthouse was behind the trees.
The Handren affidavit provided evidence that the new home design would have essentially the same footprint as the previous home.
A. Views. 'Generally, concerns about the visual impact of a structure do not suffice to confer standing.' Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 146 (2001). Under the Chatham zoning by-law (by-law), however, plaintiffs may have standing if they can demonstrate 'particularized harm to the plaintiff[s'] own property and a detrimental impact on the neighborhood's visual character.' Kenner v. Zoning Bd. of Appeals of Chatham, supra at 121 (citation omitted).
The judge, writing without the benefit of the Kenner decision, granted summary judgment after determining that the by-law 'protects views of the neighborhood and not views from one's house.' As noted, per Kenner, this determination was erroneous.
Hallock claims in his affidavit that the new Chandler home will block his views of the Chatham Lighthouse. However, Hallock fails to present any evidence that would support this assertion. Because Hallock fails to provide 'specific factual support' for his claim that his views will be diminished, his claim does not rise above the level of conjecture, opinion, or hypothesis. See Butler v. Waltham, 63 Mass. App. Ct. 435, 441 (2005) ('Conjecture, personal opinion, and hypothesis are therefore insufficient' to confer standing). Thus, Hallock's claim of a diminished view is insufficient to confer standing, and therefore cannot survive summary judgment, as he fails to provide credible evidence of particularized injury. See Kenner, supra.
Although the plaintiffs argue in their brief that the proposed structure would also block the sweep of light from the lighthouse on Hallock's house, this claim was not raised below and therefore the issue is not properly before us on appeal.
The Deadricks allege that the Chandlers' proposed design would eliminate the Deadricks' currently unobstructed views over the Chandlers' garage. A report prepared by professional engineer David Clark provides evidence of the elevation of the Deadrick home. The plaintiffs also provided evidence of the elevation of the Chandlers' proposed structure, which would be two and six-tenths feet higher than the ridge of the Deadricks' roof. The plaintiffs point out that if the portion of the roof over the Chandler garage were higher than the Deadricks' roof, this would necessarily block any views the Deadricks currently enjoy over the Chandlers' garage. See Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752, 759 (2010). Thus, the Deadricks have alleged sufficient evidence of particular injury to meet the first prong of Kenner's two-prong test. See Kenner, supra.
The only evidence that the Deadricks presented of these views was in the form of an affidavit by Edwin Deadrick stating that 'we have enjoyed unobstructed views of South Beach and the Atlantic Ocean from all of the windows in the second floor of our house . . . over the roof of the existing garage' of the Chandler home. Drawing all reasonable inferences in favor of the nonmoving party, Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010), we deem this sufficient evidence for the purpose of summary judgment.
Although the judge stated in a footnote that the Deadricks failed to provide sufficient credible evidence in support of their argument for standing, he failed to state why the evidence reviewed above would be insufficient to survive summary judgment. The judge further stated that the change to the Deadricks' views would not confer standing because it would be de minimis. While it is true that '[a]ggrievement requires a showing of more than minimal or slightly appreciable harm,' Kenner, supra at 121, the sufficiency of the harm in this case is a fact question to be determined through an evidentiary hearing or at trial. See id. at 123 (deferring to trial court finding that 'the increased height of the new house would have a de minimis impact on the Kenners' view of the ocean' where trial court held a trial and conducted a view).
Through the affidavit of William McGovern, the Deadricks provide evidence that the proposed structure will have 'a detrimental impact on the neighborhood's visual character.' Kenner, supra at 121. McGovern opines that the increase in bulk and height of the Chandler house, which will be seventy percent larger than the average home in the sub-neighborhood, will have the effect of 'overpowering' the other houses in the neighborhood. McGovern's opinion as a qualified expert witness is sufficient to establish facts for the purpose of summary judgment. See Michaels v. Zoning Bd. of Appeals of Wakefield, 71 Mass. App. Ct. 449, 453 (2008). Thus, the Deadricks have alleged sufficient evidence to meet the second prong of Kenner's two-prong test and have standing to challenge the special permit. See Kenner, supra; Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685, 688-689 (1994).
William McGovern is a real estate appraiser, broker, and developer.
With regard to loss of views, summary judgment was therefore appropriately granted to the Chandlers for Hallock's claims but erroneously granted for the Deadricks' claims. We therefore remand the Deadricks' claims for further proceedings.
B. Open space and privacy. Hallock claims that the increase in height and mass of the Chandler house will lead to a loss of open space and privacy and that the proposed structure 'will have the effect of overpowering and dwarfing [his] house.' Hallock has failed to allege any facts to establish that his loss of open space and privacy would be 'special and different' from the loss of open space in the community. Barvenik, 33 Mass. App. Ct. at 132. Moreover, his 'concerns about diminished open space[] [and] incompatible architectural styles . . . express matters of general public concern which were appropriately addressed by the . . . administrative proceedings held in this case.' Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493 (1989).
'Protected interests' under the by-law include: '[a]dequacy of the size of the site including, but not limited to, maximum lot or building coverage and setbacks' (§ V.B.1) and '[c]ompatibility of the size of the proposed structure with neighboring properties' (§ V.B.2).
The Deadricks did not claim an injury as a result of loss of open space or privacy.
II. General Laws c. 240, § 14A. The plaintiffs next argue that they are entitled to declaratory relief under G. L. c. 240, § 14A, and that the trial court erred in finding that, because the plaintiffs lacked standing under G. L. c. 40A, § 17, they also lacked independent standing to challenge the special permit under G. L. c. 240, § 14A. Because we hold that the Land Court lacked subject matter jurisdiction (see discussion infra), we need not decide whether the plaintiffs had standing under G. L. c. 240, § 14A.
General Laws c. 240, § 14A, provides in pertinent part:
'The owner of a freehold estate in possession in land may bring a petition in the land court . . . for determination as to the validity of a municipal ordinance, by-law or regulation . . . which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land . . . or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use.'
We note, however, that a plaintiff is not automatically precluded from bringing a claim under G. L. c. 240, § 14A, for lack of standing simply because the plaintiff lacks standing under G. L. c. 40A, § 17. A plaintiff may lack standing under G. L. c. 40A, § 17, and yet succeed in establishing the same under G. L. c. 240, § 14A. See Hanna v. Framingham, 60 Mass. App. Ct. 420, 422-424 (2004) (noting the significantly less stringent standard for standing under c. 240 than under c. 40A).
In granting the Chandlers' request for a special permit, the ZBA was required to evaluate whether the twenty foot height limitation applied, and in so doing, came to the conclusion that 'although the living area would increase, the proposed footprint of the proposed dwelling was virtually the same as the existing dwelling.' The ZBA was permitted to conclude that the Chandlers' proposed structure did not constitute an 'expansion' under § IV.A.3 of the by-law, and that therefore, the proposed structure was not subject to the height limitation of twenty feet. See Federman v. Board of Appeals of Marblehead, 35 Mass. App. Ct. 727, 731 (1994).
Section IV.A.3 (Conservancy District -- Special Permit Uses) states in pertinent part:
'Structures shall not exceed twenty feet (20') in height. Provided there is no expansion, those dwellings which existed prior to January 16, 1992 and are required by the Building Inspector to be elevated in accordance with FEMA Regulations, shall not be required to conform to the twenty foot (20') height restriction' (emphasis added).
In asking the Land Court to determine the effect of § IV of the by-law on the Chandlers' proposed structure, the plaintiffs are effectively asking the court to review the ZBA's interpretation and application of the word 'expansion.' Such a review is proper under G. L. c. 40A, § 17, but is beyond the scope of G. L. c. 240, § 14A, because the Land Court is without jurisdiction to evaluate the validity of the special permit under the latter statute. See Whitinsville Retirement Soc. v. Northbridge, 394 Mass. 757, 764 (1985).
Conclusion. The judgment is reversed insofar as it determined that the Deadricks lacked standing under G. L. c. 40A based on diminution of views. In all other respects, the judgment is affirmed. The matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Cypher, Graham & Katzmann, JJ.),