Marashlian v. Zoning Board of Appeals

O’Connor, J.

(dissenting, with whom Lynch and Greaney, JJ., join). The Superior Court judge “rule[d] that Christopher Snow and [Sonya] Marashlian have standing to maintain this action as ‘aggrieved persons’ under G. L. c. 40A, § 17.” Relying on Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass. App. Ct. 274, 276 (1985), the judge reasoned that “[e]yen if Snow and Marashlian were to prove no more than the likelihood of fear of harm on the part of themselves, their visitors, clients and employees, they have standing to maintain this action.” The judge’s reasoning and ruling were incorrect. The judge should not have relied on Sherrill House, Inc., supra.

In Sherrill House, Inc., supra, the plaintiff operated a nursing home as a nonconforming use in a residential district. The Appeals Court held that the plaintiff lacked standing to challenge a decision of the Boston board of appeal *728granting to the owner of neighboring property a permit to change the use of that property from a hospital to a correctional facility. Id. at 275-279. The Appeals Court concluded that the plaintiff lacked standing to challenge the board’s action because the plaintiff was “operating under a nonconforming use.” Id. at 276. The court observed in dictum, however, that the plaintiff would have had standing to challenge the board’s decision if the plaintiff had not been operating under a nonconforming use and had proved a likelihood that, following the conversion of the neighboring hospital to a correctional facility, the plaintiff’s nursing home clients, visitors and employees would fear that they would become assault victims as a result of a correctional facility being located next door. Clearly, fear of that kind would tend to diminish the market value of the plaintiff’s property. However, it does not follow that, to have standing to challenge the action of the defendant board of appeals in this case, the plaintiffs needed only to prove the likelihood that, in advance of the zoning board’s decision being implemented, the plaintiffs, their clients, visitors or employees feared that the decision would result in an increase in traffic or a decrease in parking spaces.

In a single proceeding, the judge in the Superior Court heard evidence that bore not only on the issue of standing, but also on the substantive issues relating to whether the zoning board of appeals of Newburyport had exceeded its authority in granting a special permit and two variances to the Newburyport Redevelopment Authority and Foster Properties, Ltd. The judge concluded that the plaintiffs had standing to challenge the zoning board’s decision, but that the decision was lawful. The court affirms that decision. In my view, the plaintiffs did not have standing and therefore the court did not have jurisdiction to review the board’s decision. Riley v. Janco Cent., Inc., 38 Mass. App. Ct. 984, 985 (1995). I would vacate the judgment and dismiss the action.1

*729As the court says, ante at 721, “Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption they are ‘persons aggrieved.’ [Watros v. Greater Lynn Mental Health & Retardation Ass’n, ante 106, 111 (1995)].” When a defendant challenges the plaintiffs standing and supports that challenge with evidence of lack of aggrievement, the jurisdictional issue must be decided on the basis of the evidence without reference to the presumption. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957). Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992). Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372, 376 (1988). Sherrill House, Inc. v. Board of Appeal of Boston, supra at 275.

In this case, the challenge to the plaintiffs’ presumed aggrievement (and therefore standing) was supported by evidence of nonaggrievement. The presumption of standing therefore disappeared and the plaintiffs had the burden to prove to the judge the necessary facts to establish it. Barvenik v. Aldermen of Newton, supra at 131-132. The plaintiffs failed to carry that burden because, although the judge erroneously concluded that the plaintiffs had standing, his findings established the opposite.

The judge made the following relevant findings, all of which were warranted by the evidence: (1) “The number of parking spaces to be provided for the Project will be sufficient to meet the parking demands generated by the hotel. Therefore, the Project will not add to any existing onstreet parking congestion in the area”; (2) “[T]he supply of public parking spaces in the area will be adequate to meet the demand”; (3) “With respect to traffic, the [Pjroject is expected to minimally increase traffic volumes and . . . site-generated traffic will not have a major impact on area traffic patterns. Any adverse traffic impacts will be controlled by implementing certain mitigation measures.” The judge’s further find*730ing, to which reference is made in the court’s opinion, ante at 723, that the project will result in a decrease in the number of currently available public parking spaces (referred to in the court’s opinion, ante at 723-724 n.5, as “the tangible loss of parking spaces”) is of no consequence in view of his findings numbered (1) and (2) above. Decrease in a surplus of available parking spaces, leaving a supply adequate to meet the demand, is not the type of harm G. L. c. 40A is designed to protect against. The same may be said of a minimal increase in traffic in a business area which “will be controlled by implementing certain mitigation measures.”

Apart from evidence concerning traffic and parking, there was no evidence, and there were no findings, suggesting that the zoning board’s actions are likely to result in harm to the plaintiffs’ legally protected interests. Consequently, in my view, the Appeals Court correctly concluded, contrary to the legal conclusion reached by the trial judge (although the aforementioned findings were warranted), and by this court on appeal, that the plaintiffs lacked standing to bring this action. The Superior Court, therefore, lacked jurisdiction to review the zoning board’s actions. The judgment should be vacated and the action should be dismissed. See Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 433 (1949).

As a practical matter, the defendants “prevail” whether the court affirms the judgment, as it does here, or the case is dismissed, as I advocate. *729I write separately only because I believe the court’s treatment of the standing issue is incorrect and may have an adverse impact on the development of the law.