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Tremblay v. Araujo

Superior Court of Massachusetts, Suffolk

September 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.[3] For these reasons, I decline Plaintiffs' invitation to find that they have standing simply because the Board sent them notice of the variance hearing.

         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.[4]

         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, " ...


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