Opinion
1784CV01862
11-03-2017
Jessica RICKER et al.[1] v. Christine ARAUJO[2] et al.[3]
Caption Date: November 2, 2017
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT 3353 WASHINGTON, LLC’S, MOTION TO DISMISS PURSUANT TO M.R.C.P. 12(b)(1) and 12(b)(6)
Mark A. Hallal, Justice
The plaintiffs filed this action seeking judicial review of a decision of the City of Boston Zoning Board of Appeals (the " Board") granting defendant 3353 Washington, LLC (" 3353 Washington") eight variances to erect a new six-story mixed-use building in Jamaica Plain. The defendants now move to dismiss the plaintiffs’ Complaint pursuant to Mass.R.Civ.P. 12(b)(1) and 12(b)(6) arguing that the plaintiffs do not have standing to bring the zoning appeal and thus, the court lacks subject matter jurisdiction. For the following reasons, the defendants’ Motion to Dismiss is ALLOWED.
3353 Washington filed a Motion to Dismiss that was joined in by the Board.
BACKGROUND
The following facts are taken from the plaintiffs’ Complaint and documents filed by the parties in connection with the defendants’ Motion to Dismiss under Mass.R.Civ.P. 12(b)(1). See Audoire v. Clients ’ Sec. Bd., 450 Mass. 388, 390 n.4 (2008) (" A judge, and logically a reviewing court, may consider documents and other materials outside the pleadings when ruling a rule 12(b)(1) motion"). Some facts are reserved for discussion below.
3353 Washington is the owner of a property located at 211 Green Street in Jamaica Plain (the " Property"). The Property is a corner lot abutted by Green Street and Washington Street in a district zoned as " Local Industrial" under the Boston Zoning Code (" Code"). At all relevant times it was improved with a detached retail space.
In December 2016, 3353 Washington submitted an application to the Boston Inspectional Services Department (" ISD") seeking a permit to construct a six-story building with forty-five residential units, ground floor retail space, and twenty-four off-street parking spaces on approximately 15, 000 square feet of land comprised of the Property and four parcels adjacent thereto (the " Project"). In January 2017, ISD denied 3353 Washington’s request based on its findings that the Project violated the Code’s restrictions on building height and area, and portions of the Code concerning, inter alia, off-street parking, useable open space, rear yard, and off-street loading area requirements. 3353 Washington timely appealed ISD’s decision to the Board.
Subsequently, a public hearing was held on May 9, 2017 by the Board, wherein 3353 Washington sought variances. Following the public hearing, the Board issued a decision allowing 3353 Washington’s appeal on May 23, 2017. Pursuant to that decision, the Board granted 3353 Washington eight variances that it needed to move forward with the Project. The Board’s decision stated that the variances were " necessary for the reasonable use of the land, " and that the Project was " the result of extensive community outreach" and would " not be injurious to the neighborhood or otherwise detrimental to the public welfare."
On June 15, 2017, the plaintiffs filed the present action for judicial review of the Board’s decision. The plaintiffs are tenants of residential buildings located at 180 and 190 Green Street. The plaintiffs’ residences are on lots situated on the opposite side of Green Street. The residences are not directly across the street from the Property, but are located within 300 feet of it. The plaintiffs’ residences are adjacent to the west side of Greenley Place, which is a side street that intersects with Green Street. The Property is across the street from the easternmost of the three lots that are situated in between the east side of Greenley Place and Washington Street. All four plaintiffs have lived in the Green Street neighborhood for a minimum of ten years. All but one of the plaintiffs have worked in the neighborhood for at least twelve years.
The plaintiffs not only seek judicial review, but allege that the Board’s decision constitutes spot zoning and thus violates their right to Equal Protection under the State and U.S. Constitutions. In light of the finding, set forth infra, that the plaintiffs do not have standing to appeal the Board’s decision, the court need not address the spot zoning issue.
DISCUSSION
I. Standard of Review
" We treat standing as an issue of subject matter jurisdiction." Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). Because subject matter jurisdiction concerns to the power of the court to hear and decide the matter, establishing standing is a jurisdictional prerequisite to judicial review. See Ginther, 4427 Mass. at 322 n.6. Therefore, standing may be a proper basis for dismissal under Mass.R.Civ.P. 12(b)(1), " even though it could also be a basis for dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted." Doe v. Governor, 381 Mass. 702, 705 (1980). In reviewing a motion to dismiss for lack of subject matter jurisdiction, the court will consider the factual allegations of the Complaint as well as " documents and other materials outside of the pleadings" that the parties have submitted to address the merits of the plaintiffs’ jurisdictional claim. See Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 710-11 (2004) (documents submitted in connection with Rule 12(b)(1) motion mount challenge to " the accuracy (rather than the sufficiency) of the jurisdictional facts pleaded by the plaintiff"). The plaintiff carries the burden of proof. Standerwick v. Zoning Bd. of Appeals, 447 Mass. 20, n.20 (2006).
II. Analysis
In the circumstances of this case, standing is governed by the Boston Zoning Enabling Act, St. 1956, c. 665, § 11. See Sherill House, Inc. v. Board of Appeal, 19 Mass.App.Ct. 274, 275 (1985). Section 11 provides that " [a]ny person aggrieved by a decision of [the] board of appeal, whether or not previously a party to the proceeding, or any municipal board or officer, may appeal to the superior court."
Since this requirement is " identical to that in G.L.c. 40A, § 17 ... we may look beyond Boston cases to determine the meaning of aggrieved status for these purposes." Sherill House, Inc., 19 Mass.App.Ct. at 275. General Laws c. 40A is otherwise inapplicable to zoning matters that pertain to the city of Boston. See Emerson College v. Boston, 393 Mass. 303, 307-09 (1984).
" A plaintiff is a ‘person aggrieved’ if he suffers some infringement of his legal rights ... More specifically, the injury must be a violation of a private right, a private property interest, or a private legal interest." Planning Bd. v. Hingham Campus, 438 Mass. 364, 369 (2003) (quotation omitted). The " right or interest asserted" must be one that the zoning laws were designed to protect. See Standerwick, 447 Mass. at 27-28. " A person aggrieved must also present evidence to establish ... that his injury is special and different from the concerns of the rest of the community." Kenner v. Zoning Bd. of Appeals, 459 Mass. 115, 121 (2011) (quotation omitted).
In zoning cases, " abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line" of the property at issue are presumed to be aggrieved. Standerwick, 447 Mass. at 33 n.17; see Valcourt v. Zoning Bd. of Appeals, 48 Mass.App.Ct. 124, 127 (1999); Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass.App.Ct. 208, 212 (2003). In this case, the plaintiffs live within 300 feet of the Property, but they are not abutters or abutters of abutters to the Property, nor are their residences located directly across the street. The plaintiffs thus concede that they are not entitled to a presumption of aggrievement. Therefore, the plaintiffs must " put forth credible evidence" to substantiate their allegations. See Butler v. Waltham, 63 Mass.App.Ct. 435, 441 (2005), quoting Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). Importantly, they are " not required to prove by a preponderance of the evidence that [their] claims of particularized or special injury are true." Id.; see Sweenie v. A .L. Prime Energy Consultants, 451 Mass. 539, 543 (2008). " Ultimately, [whether a party is aggrieved] is a question of fact for the judge." Rinaldi v. Board of Appeal of Boston, 50 Mass.App.Ct. 657, 659-60 (2001). See also Baxter v. Board of Appeals, 29 Mass.App.Ct. 993, 995 (1990) (" Deciding whether a party is a person aggrieved calls for the exercise of an element of discretion"). After hearing, and a review of the complete motion record, the court finds that tie plaintiffs have failed to substantiate their claim that they are " persons aggrieved."
The plaintiffs’ allegations fail to confer standing on several grounds. Many of the plaintiffs’ allegations are insufficient because the plaintiffs have failed to distinguish their concerns from those of the rest of the community and in some instances, explicitly state that their concerns are shared by the rest of the community. See Sheehan v. Zoning Bd. of Appeals, 65 Mass.App.Ct. 52, 54 (2006) (" We do not read the term ‘person aggrieved’ narrowly, but the claimed injury or loss must be personal to the plaintiff, not merely reflective of the concerns of the community"). For example, the plaintiffs allege that they are concerned the Project will not only drive up the rent of their personal residences, but the rent prices of " the immediate Green Street neighborhood and surrounding neighborhoods." The plaintiffs also assert that the Project will generate an increase in vehicle traffic that will extend their commute and exacerbate the dangers that Green Street already presents not only to the plaintiffs, but " other bicyclists." Further, the plaintiffs allege that at the public hearing on 3353 Washington’s appeal to the Board, other members of the community " raised concerns" about rent increases and traffic hazards and congestion attributable to the Project. Accordingly, the plaintiffs have failed to show that the Project’s potential to drive up their rent, extend their commute, or increase cycling hazards are injuries " that [are] special to them and different from ... generalized concern[s] of the community." Sturbridge v. Board of Health of Southbridge, 461 Mass. 548, 560 (2012).
The plaintiffs allege that Green Street already presents a number of hazards to cyclists because it has " narrow margins" and is regularly cluttered with double parked cars.
Other claims of injury fail because they lack evidentiary support necessary to rebut the defendants’ evidence demonstrating that the plaintiffs’ concerns, are speculative and/or regard a de minimis level of potential harm. Kenner v. Zoning Bd. of Appeals, 459 Mass. 115, 121 (2011) (" Aggrievement requires a showing of more than minimal or slightly appreciable harm") (quotation omitted). To wit, the plaintiffs contend that an increase in vehicle traffic attributable to the Project will create a substantial increase in noise pollution, raise the level of air pollution, and cause an increase in traffic that will make it difficult to find nearby spaces to park vehicles. However, the plaintiffs have not filed any affidavits or other materials supporting their claims as to how they will be impacted by an increase in vehicle traffic, let alone materials challenging the 3353 Washington’s Traffic Impact Analysis showing that the Project will increase rush hour traffic in the Green Street neighborhood by less than 4% . See Barvenik v. Board of Aldermen, 33 Mass.App.Ct. 129, 133 (1992) (although possible vehicle traffic increases is a legitimate zoning-related concern " a plaintiff must nonetheless offer more than conjecture and hypothesis"); see also Standerwick, 64 Mass.App.Ct. at 340 (claims of aggrievement " must be neither speculative nor too remote"). Cf. Higby/Fulton Vineyard, LLC v. Board of Health, 70 Mass.App.Ct. 848, 851 (2007) (no standing for G.L.c. 249, § 4 appeal where plaintiff asserted project created a " potential, likelihood, and possibility" of harm from increased pollution, but failed to put forth evidence to show pollution would cause " actual, substantial injury").
Insofar as the plaintiffs believe that the 4% increase is not de minimis or speculative in light of their allegations that traffic already backs up to the middle of Green Street during rush hour and on-street parking is " currently scarce, " they critically fail to explain why the same traffic increase would not result " as the natural consequences of either existing conditions or as of right development in the zoning district" where the Property is located, Barvenik, 33 Mass.App.Ct. at 139, or allege any particularized effects that the 4% traffic increase would have on them that differ from the effects on the rest of the community. See Bell v. Zoning Bd. of Appeals, 429 Mass. 551, 554 (1999) (plaintiff not aggrieved where complaint did not indicate " that the proposed project would take away parking to which he was legally entitled" and thereby caused injury different than that of the rest of the community). Compare Marashlian, 421 Mass. at 722-23 (plaintiff substantiated claims of aggrievement where record showed that plaintiff had an " interest in protecting his residential and retail tenants, the clients who visit his own place of business, his employees and himself, " all of whom utilized public street parking to meet their business and personal needs").
The plaintiffs have also failed to substantiate their claim that the Project will shade " adjacent residential developments and gardens." This allegation is undermined by 3353 Washington’s shadow study showing any shadows cast by the Project only have the potential to reach the plaintiffs’ residences during winter solstice. Any harm to the plaintiffs that results from shadows cast by the Project is therefore de minimis . See Furlong v. Blair, 23 LCR 366, 369 (Mass.Land.Ct. 2015) (shadows that would only effect property during winter solstice are de minimis and do not establish aggrievement). For these reasons, the plaintiffs’ allegations that the Project will create a substantial increase in noise pollution, raise the level of air pollution, make it difficult to find parking spaces, and cast shadows over their residences are insufficient to confer standing.
Lastly, the plaintiffs’ allegation that the Project will change the entire character of the immediate Green Street neighborhood lacks the specificity required to establish that such changes aggrieve them. See Barvenik, 33 Mass.App.Ct. at 131-33 (" Subjective and unspecific fears about the possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close neighborhood feeling, or the loss of open or natural space are all considered insufficient bases for aggrievement under Massachusetts law"). The plaintiffs allege that the Project will burden a neighborhood zoned for industrial use with a six-story building, but do not explain how or why this changes the character of the neighborhood. Consequently, the plaintiffs’ allegations concerning changes to the character of the neighborhood are insufficient to confer standing.
Based on the foregoing, the plaintiffs have failed to assert and substantiate allegations that establish they are " persons aggrieved." Therefore, they do not have standing to assert their zoning claims, and the court does not have subject matter jurisdiction to hear them.
ORDER
For the foregoing reasons, the defendants’ Motion to Dismiss the Complaint pursuant to Mass.R.Civ.P. 12(b)(1) is ALLOWED.