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17-P-430 Appeals Court
CLAUDIA MURROW vs. ESH CIRCUS ARTS, LLC, & others.1
No. 17-P-430.
Suffolk. March 7, 2018. - May 17, 2018.
Present: Meade, Rubin, & Neyman, JJ.
Zoning, Appeal, Person aggrieved, Board of appeals: notice of
hearing. Practice, Civil, Zoning appeal, Standing, Motion
to dismiss. Notice.
Civil action commenced in the Land Court Department on
December 3, 2015.
A motion to dismiss was heard by Gordon H. Piper, J.
Michael S. Rabieh for the plaintiff.
Edward J. Lonergan for Esh Circus Arts, LLC, & others.
MEADE, J. Following the approval by the zoning board of
appeals of Somerville (ZBA) of a modification of a special
permit submitted by Esh Circus Arts, LLC, Ellen Waylonis, and
Belam II, LLC, the property owner (collectively Esh unless
1 Ellen Waylonis; Belam II, LLC; Francis Galasso; Jonah
Jacob; and zoning board of appeals of Somerville.
2
otherwise noted), Claudia Murrow appealed the approval to the
Land Court, where a judge dismissed Murrow's complaint due to
her lack of standing. Judgment entered and Murrow appeals. We
affirm.
1. Background. Esh operates a "for-profit [circus] school
for instruction in arts, skills, or vocational training" in
Somerville. Esh held a special permit that the ZBA previously
granted in an earlier case. On September 30, 2015, Esh applied
for what appears to be a modification to that special permit
from the ZBA, seeking to increase the floor area and alter the
site plan. Notice of the application and the public hearing
"was given to persons affected and was published and posted, all
as required by G. L. c. 40A, § 11, and the Somerville Zoning
Ordinance," as noted in the ZBA decision. After a public
hearing, on November 4, 2015, the ZBA unanimously voted to
approve Esh's application. The decision was filed with the city
clerk on November 13, 2015.
Murrow received notice of the ZBA decision and filed a
complaint in the Land Court on December 3, 2015. She alleged,
among other things, that Esh's proposed changes would cause a
detrimental health, safety, and welfare effect on Murrow and
Esh's surrounding neighbors. Waylonis filed a motion to dismiss
Murrow's complaint on July 8, 2016, arguing that Murrow was not
an aggrieved party and therefore lacked standing. The parties
3
filed an excerpt of the Somerville Zoning Code and a list of
abutters for the judge's consideration. Following a hearing,
the judge allowed the motion to dismiss on August 26, 2016,
finding that Murrow was not a party in interest entitled to a
rebuttable presumption of aggrievement, and that her complaint
failed to state facts that would establish her standing to
appeal the ZBA's decision.
2. Discussion. We review the allowance of a motion to
dismiss de novo, accepting the allegations in the complaint as
true and drawing all reasonable inferences in favor of the
plaintiff. See Curtis v. Herb Chambers I-95, Inc., 458 Mass.
674, 676 (2011). In order to withstand a motion to dismiss, the
complaint must include factual allegations sufficient "to raise
a right to relief above the speculative level." Iannacchino v.
Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
a. Rebuttable presumption of aggrievement. Murrow claims
that the judge erred in finding that Murrow lacked a rebuttable
presumption of aggrievement as a "party in interest" under G. L.
c. 40A, § 11. We disagree.
To have standing to challenge the decision of a municipal
zoning authority, a plaintiff must be a person aggrieved. G. L.
c. 40A, § 17. See Marinelli v. Board of Appeals of Stoughton,
440 Mass. 255, 257 (2003). Aggrieved person status is
4
jurisdictional. Denneny v. Zoning Bd. of Appeals of Seekonk, 59
Mass. App. Ct. 208, 211 (2003), citing Barvenik v. Aldermen of
Newton, 33 Mass. App. Ct. 129, 131 (1992). Demonstrating
aggrievement requires a plaintiff to show she has suffered a
specialized, cognizable injury "not merely reflective of the
concerns of the community." Denneny, supra at 211-212, citing
Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge,
27 Mass. App. Ct. 491, 492-493 (1989). A plaintiff is entitled
to a rebuttable presumption of aggrievement if she is a "party
in interest" under § 11.2 Id. at 212. As defined there, "party
in interest" refers to "the petitioner, 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 petitioner as they appear on the most
recent applicable tax list." G. L. c. 40A, § 11. By § 11's
strict terms, Murrow -- who lives across the street from, but
not directly opposite, Esh's property -- is not, and does not
allege to be, the petitioner, an abutter, or the owner of land
directly across from Esh's property.
2 This rebuttable presumption originated in Marotta v. Board
of Appeals of Revere, 336 Mass. 199, 204 (1957), based on the
principle "that those entitled to notice of the proceedings are
presumed to have the requisite interest" for standing purposes.
Standerwick v. Zoning Bd. of Appeals, 447 Mass. 20, 33 (2006).
Property owners entitled to notice are those defined in the
third sentence of § 11. Watros v. Greater Lynn Mental Health &
Retardation Assn., 421 Mass. 106, 110-111 (1995).
5
However, Murrow does claim that she is a party in interest
as one of the "abutters to the abutters within three hundred
feet" because she lives within three hundred feet of the Esh
property. We disagree. When interpreting a statute, "each
clause or phrase is to be construed with reference to every
other clause or phrase without giving undue emphasis to any one
group of words." Worcester v. College Hill Properties LLC, 465
Mass. 134, 139 (2013), quoting from Selectmen of Topsfield v.
State Racing Commn., 324 Mass. 309, 312-313 (1949). The phrase
"within three hundred feet" modifies "abutters to the abutters"
and does not create a standalone category of parties in
interest. To read § 11 otherwise would "render [a] portion of
it meaningless," Adamowicz v. Ipswich, 395 Mass. 757, 760
(1985), which we decline to do.
Murrow also claims she has standing pursuant to the fourth
sentence of G. L. c. 40A, § 11, which states that "[t]he
assessors maintaining any applicable tax list shall certify to
the . . . special permit granting authority the names and
addresses of parties in interest[,]" which "shall be conclusive
for all purposes." Ibid. Murrow claims that, because she
received notice of the public hearing and of the ZBA's decision,
presumably by virtue of her appearance on a certified abutters
list, she qualifies for the rebuttable presumption, even if she
6
does not meet the definition in the third sentence of § 11. As
a plain reading of § 11 belies Murrow's claim, we disagree.
As previously explained, the third sentence of § 11
provides a limited definition of "parties in interest" to be
used throughout G. L. c. 40A. In particular, it states that
more remote abutters, i.e., abutters to abutters within three
hundred feet, are considered parties in interest "as they appear
on the most recent applicable tax list." As discussed above,
Murrow does not qualify as a party in interest under this
provision. The fourth sentence of § 11 provides that tax
assessors "shall certify . . . the names and addresses of
parties in interest," which is a reference to the definition of
parties in interest expressed in the previous sentence. It does
not expand the earlier definition, nor does it empower the tax
assessor to identify individuals as parties in interest who do
not meet the limited statutory definition.
In addition, this provision states that the tax assessor's
certification of parties in interest "shall be conclusive for
all purposes." In light of the limited scope of the assessor's
certification in the context of the notice requirement of § 11,
we do not interpret "for all purposes" to mean that the tax list
creates new parties in interest. To do so would nullify the
clear and unambiguous definition set forth in the previous
sentence. Furthermore, such an interpretation would ignore much
7
of the standing jurisprudence related to G. L. c. 40A, §§ 8,3 11,
and 17.4 See Chongris v. Bd. of Appeals of Andover, 17 Mass.
App. Ct. 999, 1000 (1984), citing Turner v. Bd. of Appeals of
Milton, 305 Mass. 189, 192-193 (1940). Rather, the tax list
identifies and certifies owners of relevant properties, a subset
of which may fit within the narrow confines of the "parties in
interest" definition, and that certification of ownership shall
be conclusive. Put another way, although the list may contain
individuals who do not qualify as "parties in interest" under
the statutory definition, such as Murrow, the assessor's
certification is conclusive as to who owns what parcel for the
purposes of the notice requirement; it is not an unassailable
list of parties with standing.5
3 This section permits "any person aggrieved by reason of
his inability to obtain a permit or enforcement action" to
maintain an appeal to the permit granting authority.
4 This section allows a "person aggrieved" to seek judicial
review of a decision, or failure to take final action, by the
board of appeals or special permit granting authority.
5 Additionally, the Somerville Zoning Code permits the ZBA
to provide notice to parties described in § 11 as well as "other
owners as may be deemed by the Board of Appeals to be
interested." Notice provided to parties the ZBA deems
interested in addition to those statutorily required to receive
notice does not alter the statutory requirement and is not
conclusive for standing purposes.
8
Taking the facts in the complaint in the light most
favorable to Murrow, her name appears on two abutter's lists,6
and she received a notice of the public hearing and of the ZBA's
ultimate decision. This does not entitle her to the rebuttable
presumption afforded parties in interest under the statute.
Were we to adopt Murrow's reasoning and find otherwise, tax
assessors would be empowered to confer standing on parties who
are otherwise not identified in § 11 as parties in interest. We
decline to create such an impracticable result.
b. Burden to plead aggrievement. Finally, Murrow claims
that the judge improperly placed on her the burden to plead that
she is aggrieved by Esh's application for special permit. We
disagree.
Murrow properly observes that if a plaintiff qualifies for
the rebuttable presumption of "standing as an aggrieved person,
a defendant must offer evidence warranting a finding contrary to
6 We note that, in our review of the record, these list
excerpts appear unadorned, lacking any identifiable insignia or
indicia as to their sources. One is labelled "Abutting
Properties for [Esh's property] (300 feet)" and contains a
handwritten notation: "[Esh] Abutters for ZBA 2015-89," the
docket number for Esh's special permit case. The other contains
a notation of "[Esh] Abutters for ZBA 2013-62," the docket
number for Esh's earlier special permit case. Furthermore, as
the judge found, these lists "[do] not have the certification of
the tax assessor, and therefore [do] not fit the statutory
definition of a" certified list. In light of our statutory
discussion, we need not reach the issue of whether the list was
actually certified.
9
the presumed fact." Marinelli, 440 Mass. at 258. However, as
here, when a plaintiff fails to meet the "party in interest"
designation, she may nevertheless have standing if she is a
person aggrieved, in other words, if the "permit causes, or
threatens with reasonable likelihood, a tangible and
particularized injury to a private property or legal interest
protected by zoning law." Standerwick v. Zoning Bd. of Appeals
of Andover, 64 Mass. App. Ct. 337, 340 (2005), S.C. 447 Mass. 20
(2006), citing Marashlian v. Zoning Bd. of Appeals of
Newburyport, 421 Mass. 719, 723 (1996). But it is always a
plaintiff's burden to demonstrate her aggrievement. Standerwick
v. Zoning Bd. of Appeals, 447 Mass. at 34-35 n.20.
Here, the judge did not err in dismissing Murrow's
complaint for lack of standing. Because Murrow does not qualify
as a party in interest and is not entitled to the presumption,
the burden remained on her to put forth credible facts of her
specialized injury. Despite having the opportunity to do so at
the hearing, Murrow chose to rely on the bald allegations in her
complaint, which fail to set forth a particularized injury
caused by Esh's proposed expansion. Instead, Murrow claims
personal damages in only two paragraphs of her factual
allegations, where she generally alleged that Esh's
"recreational use" and "proposed increase in size and occupancy"
would be "detrimental to Murrow and the neighborhood by
10
increasing the potential for overcrowding and undue
concentration of population, discouraging housing for persons of
all income levels, enhancing danger from fire, diminishing the
value of surrounding properties, and adding to noise, light,
traffic, loss of privacy, and trespass."
This conclusory statement, unadorned with particularized
details, is insufficient to establish aggrievement. See
Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct.
680, 683 (2002) ("While the plaintiff undoubtedly is
inconvenienced by the heavy traffic . . . this evidence is an
insufficient predicate for finding that he is a 'person
aggrieved'"). Compare Marashlian, supra at 723 (standing found
where defendant's hotel project would likely increase traffic
and eliminate some public parking, upon which plaintiffs relied
for "business and personal needs"); Bertrand v. Board of Appeals
of Bourne, 58 Mass. App. Ct. 912, 912 (2003) (finding standing
existed where plaintiff alleged environmental impacts of the
septic system, increase in artificial light and noise, and
decrease in privacy resulting from defendant building two houses
directly behind the plaintiff's house). Therefore, contrary to
Murrow's claim, the judge did not err in finding that Murrow had
the burden to show an "alleged injury" that was "special and
different from the concerns of the rest of the community" and
failed to do so. Compare Boston Edison Co. v. Boston Redev.
11
Authy., 374 Mass. 37, 46 (1977) (Boston Edison has standing as a
"person aggrieved" where its loss is "direct, substantial, and
ascertainable").
c. Esh's demand for costs, damages, and attorney's fees.
Although Murrow has failed to persuade us that the judge erred
in dismissing her claims, sanctions are not warranted as this
appeal is neither frivolous nor was it initiated in bad faith.
See Avery v. Steele, 414 Mass. 450, 455 (1993). We therefore
decline to exercise our discretion to award attorney's fees,
costs, and damages. See Masterpiece Kitchen & Bath, Inc. v.
Gordon, 425 Mass. 325, 330 (1997).
Judgment affirmed.
RUBIN, J., concurring. This case involves an important
question that has vexed the judges of the trial court, who have
reached different conclusions about it. I join the court's
opinion, but add a few words since the statute says the
assessors' certified list of "the names and addresses of parties
in interest" shall be "conclusive for all purposes," and, at
least at first blush, it may look like we are holding it is not
conclusive for at least one purpose, the rebuttable presumption
of standing given by our courts to those defined by the statute
as "parties in interest." See G. L. c. 40A, § 11.
The question of standing involves a construction of who is
a "person aggrieved" under G. L. c. 40A, § 17. While some
"parties in interest" may also be "person[s] aggrieved," and
vice versa, the concepts are different. See, e.g., Denneny v.
Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208, 212-213
(2003) (plaintiff was an abutter to an abutter within three
hundred feet of the petitioner's property line, and thus a
"party in interest," but was not a "person aggrieved" by the
board's decision).
The prior version of what is now G. L. c. 40A, § 11,
provided that,
"The board of appeals shall fix a reasonable time for the
hearing of any appeal or other matter referred to it or any
petition for a variance, and give public notice thereof in
an official publication, or a newspaper of general
circulation, in the city or town, and also send notice by
2
mail, postage prepaid, to the petitioner and to the owners
of all property deemed by the board to be affected thereby,
as they appear on the most recent local tax list, and to
the planning board of such city or town." G. L. c. 40A,
§ 17, as appearing in St. 1954, c. 368, § 2.1
In Marotta v. Board of Appeals of Revere, 336 Mass. 199
(1957), the Supreme Judicial Court held "that there is a
presumption that property owners to whom the board in the
performance of its statutory obligation has sent notice as
persons 'deemed by the board to be affected thereby' have an
interest and are persons aggrieved. 'It ordinarily must be
presumed that such determination of landowners likely to be
affected will be made in good faith and exclude none fairly
within the scope of the statute.' Godfrey v. Building
Commissioner of Boston, 263 Mass. 589, 591 [1928]." Id. at 204
(footnote omitted). Of the rebuttable presumption of standing
it articulated, the court also said that "it is a rule of reason
which, in the absence of direct evidence on the issue, will hold
the board to the implications of its own determination and carry
the appealing parties over the jurisdictional threshold." Ibid.
Apparently concerned about the discretion given the zoning
boards of appeals to determine under this section who would
1 When the Zoning Act underwent its last major
recodification in 1975, the sections were renumbered. See St.
1975, c. 808, § 3. The current section 11 corresponds to
section 17 from the 1954 codification, and the current section
17 corresponds to the prior section 21.
3
receive notice, the Legislature in 1975 amended it. Rather than
leaving the determination of who should get notice to the
judgment of the ZBAs, it created the previously unknown legal
category, "parties in interest:" As originally enacted, the
statute said "'[p]arties in interest' as used in this chapter
shall mean the petitioner, abutters, owners of land directly
opposite on any public or private street or way and owners of
land within three hundred feet of the property line all as they
appear on the most recent applicable tax list, notwithstanding
that the land of any such owner is located in another city or
town, the planning board of the city or town, and, the planning
board of every abutting [city or town]." G. L. c. 40A, § 11, as
appearing in St. 1975, c. 808, § 3. Under this definition,
Murrow would have been a party in interest. The statute was
further amended, however, in 1979 to partially narrow "parties
in interest," so that instead of including all "owners within
three hundred feet of the property line" it now includes only
"abutters of the abutters within three hundred feet of the
property line of the petitioner." St. 1979, c. 117. Parties in
interest, as defined by the statute, are entitled to notice.
See G. L. c. 40A, §§ 9, 9A, 10, 11, 15, 16.
The 1975 amendment also added the language at issue in this
case, providing, "[t]he assessors maintaining any applicable tax
list shall certify to the permit granting authority or special
4
permit granting authority the names and addresses of parties in
interest and such certification shall be conclusive for all
purposes." While ultimately we need not decide the issue in
this case, I note that it is not clear with respect to what
"such certification" is supposed to be conclusive. Perhaps it
is conclusive with respect to "the names and addresses" of
parties in interest, and if a person within the statutory
definition is missing from the list, he or she can nonetheless
be notified. Perhaps it is supposed to be conclusive only for
all purposes of the authority to which the certification is
made. Or perhaps, as Ms. Murrow argues, it is supposed to be
conclusive as to what owners meet the statutory definition,
providing a conclusive list identifying the names and addresses
of "parties in interest."
Even assuming the latter is the case, however, ultimately
we are not concerned here with who are deemed "parties in
interest." We are concerned with who is entitled to the
rebuttable presumption of standing. The statute does not say
that "parties in interest" are to be given a presumption that
they are "persons aggrieved." If it did, perhaps the certified
list would control for that purpose, though, again, we need not
resolve that question.
The presumption of standing articulated in Marotta was a
judicial creation, and, in the absence of legislation, its scope
5
must be judicially determined. It actually originated both out
of deference to the statutorily mandated determinations of the
zoning appeals boards and as a means of holding those boards to
their determinations as to which property owners were "affected"
by their decisions: if a board determined that a property owner
would be affected by its decision, as evidenced by its notifying
the property owner, that property owner's appeal would be
"carr[ied] . . . over the jurisdictional threshold" unless there
was "direct evidence on the issue." Marotta, 336 Mass. at 204.
Marotta itself of course does not address the significance
of being a "party in interest" -- a concept the Legislature did
not adopt until almost twenty years after that decision -– and
so the use of that designation to create a presumption of
standing cannot have been one of the "purposes" contemplated by
the Legislature in 1975. Rather, appellate cases decided after
the 1975 amendments to the statute have given a judge-made
rebuttable presumption of standing to this newly-defined
category. They have done so by citation to Marotta, and without
any explicit analysis of why the rebuttable presumption,
originally given to those deemed by the board to be affected,
should be given to statutorily described "parties in interest."
See, e.g., Watros v. Greater Lynn Mental Health & Retardation
Assn., Inc., 421 Mass. 106, 111 (1995); Marashlian v. Zoning Bd.
of Appeals of Newburyport, 421 Mass. 719, 721 (1996); 81 Spooner
6
Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692,
700 (2012); Valcourt v. Zoning Bd. of Appeals of Swansea, 48
Mass. App. Ct. 124, 127-128 (1999); Choate v. Zoning Bd. of
Appeals of Mashpee, 67 Mass. App. Ct. 376, 381 (2006).
In my view, however, the reason our courts provide this
rebuttable presumption is clear: it is not because the parties
have been given notice, which is what the legislature has
required be provided to "parties in interest," or because they
have been deemed "parties in interest," whether by a tax
assessor, a zoning board of appeals, or anyone else. It is
because they meet the definition of "parties in interest" set
out by the Legislature. I believe our cases and those of the
Supreme Judicial Court are best understood to reflect a
conclusion that, if the Legislature believes those individuals
and entities are entitled to notice, they are also entitled to a
rebuttable presumption of standing. Cf. Standerwick v. Zoning
Bd. of Appeals of Andover, 447 Mass. 20, 33 (2006) (presumption
of standing exists because "those entitled to notice of the
proceedings are presumed to have the requisite interest").
I would not expand the category of those who are entitled
to the presumption of standing to include those outside the
definition who happen to be on a tax assessors' certified list,
nor would I contract it to exclude any of those within the
definition who are left off such a list. Whether someone within
7
the definition has been left off the certified list, or, as
here, someone not within the definition has been added, or,
indeed, whether or not the certified name or address is wrong, I
believe those actually within the definition are the ones
entitled to the judicially-created rebuttable presumption of
standing and, consequently, that a court must independently
determine whether a party meets the definition. Consequently,
even if the tax assessors' certified list amounts to a
conclusive determination of who are the "parties in interest"
that must receive notice, that list is ultimately irrelevant to
the determination the court must make of which parties are
entitled under the case law to the rebuttable presumption they
are "persons aggrieved." Ms. Murrow is not entitled to that
presumption; someone in her circumstance might nonetheless be a
"person aggrieved," but the burden was on her to demonstrate
that fact, and, since she failed to do so, the judgment must be
affirmed.