BRAD L. WATKINS v. NEIGHBORHOOD HOUSE CHARTER SCHOOL FOUNDATION & Another.

• Court: Massachusetts Appeals Court
• Decided: March 17, 2026
• Docket: 25-P-0301
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-301

BRAD L. WATKINS

vs.

NEIGHBORHOOD HOUSE CHARTER SCHOOL FOUNDATION & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Brad L. Watkins, filed a complaint in the

Superior Court seeking to annul the decision of the city of

Boston's board of appeal (board) to grant zoning relief to

defendant Neighborhood House Charter School Foundation (NHCS).2

NHCS moved to dismiss Watkins's complaint for lack of subject

matter jurisdiction pursuant to Mass. R. Civ. P. 12 (b) (1), 365

Mass. 754 (1974). A judge of the Superior Court allowed the

motion, and Watkins appeals, arguing that the judge erred in

1 Board of appeal of Boston.

2The board did not file a separate brief in this matter and joined NHCS's brief in full. determining that NHCS successfully rebutted his presumption of

standing as an abutter to the property at issue. We affirm.

Background. We recite the facts from "affidavits and other

matter outside the face of the complaint which are used to

support the movant's claim that the court lacks subject matter

jurisdiction." Ginther v. Commissioner of Ins., 427 Mass. 319,

322 n.6 (1998). NHCS owns a parcel of land located at 21 Queen

Street in Boston (property), on which it has operated a charter

school since 2006, providing education to children in grades

kindergarten through middle school. In 2003, the previous owner

of the property obtained zoning relief on behalf of NHCS, as

prospective owner, to renovate and expand the existing structure

and continue the parcel's nonconforming educational use under

the Boston Zoning Code (zoning code). In 2005, Watkins

purchased a parcel at 9 Queen Street, which abuts the property

to the rear and to the side.

In 2017, NHCS moved the eighth-grade class from the

property to a separate high school property in response to

increased enrollment. Desiring to move the eighth-grade class

back to the property to rejoin the other middle school grades,

NHCS obtained a design for a 21,000 square foot expansion and

renovation project (2019 project). The proposed project would

add classrooms, administrative and support space, a gymnasium, a

2 new lobby, and would reconfigure traffic flow and add parking

capacity. In 2019, after the design was approved by the Boston

Planning and Development Agency, NHCS applied to the board for a

conditional use permit and for eight variances from zoning code

requirements. The 2019 project, though maintaining the same

height and number of stories for the existing building, added a

new classroom wing extension that required variances from the

zoning code's maximum building story and height allowances, as

well as variances from, as herein relevant, the maximum floor

area ratio (FAR), and the prohibition on front yard parking.

The project would not affect the property's compliance with the

zoning code's open space, side yard setback, and rear yard

setback requirements. After a view of the property and a

hearing, the board granted the variances to NHCS in October

2019. Watkins filed his complaint in the Superior Court shortly

thereafter.

Discussion. "Section 11 of the [Boston zoning] enabling

act confers standing on '[a]ny person aggrieved by a decision'

of the board of appeal." Epstein v. Board of Appeal of Boston,

77 Mass. App. Ct. 752, 756 (2010). "[That] language is

identical to that in G. L. c. 40A, § 17, and is subject to the

same interpretation." Porter v. Board of Appeal of Boston, 99

Mass. App. Ct. 240, 241 (2021). "A person aggrieved under G. L.

3 c. 40A must assert a plausible claim of a definite violation of

a private right, a private property interest, or a private legal

interest" (quotation and citation omitted). Kenner v. Zoning

Bd. of Appeals of Chatham, 459 Mass. 115, 120 (2011).

Furthermore, "the right or interest asserted by a plaintiff

claiming aggrievement must be one that the Zoning Act is

intended to protect, either explicitly or implicitly."

81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461

Mass. 692, 700 (2012). Any harm to an interest which zoning

laws are designed to protect "must be more than de minimis."

Murchison v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209,

214 (2020). "[T]he plaintiff's claimed injury must be more than

speculative" (quotation and citation omitted). Stone v. Zoning

Bd. of Appeals of Northborough, 496 Mass. 366, 374 (2025).

"A plaintiff who is an abutter to the property in question

enjoys a presumption that he or she is a 'person aggrieved.'"

Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570,

573 (2016). "[T]he defendant can rebut the presumption by

coming forward with credible affirmative evidence that refutes

the presumption, that is, evidence that warrant[s] a finding

contrary to the presumed fact of aggrievement, or by showing

that the plaintiff has no reasonable expectation of proving a

cognizable harm" (quotations and citation omitted). Id. Once

4 the presumption is rebutted, "the plaintiff must prove standing

by putting forth credible evidence to substantiate the

allegations." 81 Spooner Rd., LLC, 461 Mass. at 701.

The burden of proof of standing always remains on the

plaintiff, even when the burden of production shifts. See

81 Spooner Rd., LLC, 461 Mass. at 701. "[T]he plaintiff must

establish -- by direct facts and not by speculative personal

opinion -- that his injury is special and different from the

concerns of the rest of the community" (quotation and citation

omitted). Picard, 474 Mass. at 573-574. See Wooten v. Crayton,

66 Mass. App. Ct. 187, 190 n.6 (2006) (in motion where defendant

makes "a supported, factual challenge to subject matter

jurisdiction" under Mass. R. Civ. P. 12 [b] [1], "the plaintiff

bears the burden of proving jurisdictional facts to support

[their] claims"). Once the parties have produced their

evidence, "[s]tanding essentially becomes a question of fact for

the judge," and the "judge's ultimate findings on this issue

will not be overturned unless shown to be clearly erroneous."

Kenner, 459 Mass. at 119.

Watkins raised several claims of particularized harm in his

answers to NHCS's interrogatories. Of relevance to this appeal

are his claims that the 2019 project would (1) decrease the

available light and increase shadows on his property;

5 (2) decrease the open space abutting his property; and

(3) generally increase the density of the neighborhood.3 The

judge found that the project's shadow impact on Watkins's

property would be de minimis. The judge further found that NHCS

rebutted Watkins's open space and density concerns by offering

credible evidence that the project would comply with the zoning

code requirements for "open space, side yard setbacks, rear yard

setbacks, lot frontage, lot size, and lot width." On appeal,

Watkins argues that, in finding for NHCS, the judge failed to

account for the fact that the 2019 project required height,

story, front yard setback, and FAR variances. He argues that,

because the evidence offered by NHCS did not account for the

effects of these variances, NHCS could not have successfully

rebutted the open space and density harms he alleged. Watkins

also argues that the judge committed error in relying upon the

shadow study offered by NHCS as evidence to rebut his claims of

increased shadows on his property, claiming the study was

unverified and unreliable. We address each argument in turn.

3 In his brief, Watkins also raises claims about the effect of the 2019 project's relocation of dumpsters and the addition of a fire lane and an entrance near his property. We cannot discern, however, how these facts might infringe upon a right "that the Zoning Act is intended to protect." 81 Spooner Rd., LLC, 461 Mass. at 700. And even if we could, Watkins's claimed injuries are speculative. See Stone, 496 Mass. at 374.

6 We fail to discern, and Watkins does not explain, how the

height, story, and front yard setback variances granted to the

2019 project will cause the alleged open space and density

injuries to Watkins's parcel. See Murchison, 485 Mass. at 214

("the injury must be causally related to violation of zoning

laws"). A building's height alone indicates nothing about the

open space present on a given parcel, nor does a tall building

(or one with more stories) necessarily equate to a denser lot.

Furthermore, while a front yard setback may impact a parcel's

density and open space, the variance granted to this project

relates to aesthetic concerns i.e., that front yards conform

with "[e]xisting [b]uilding [a]lignment." The project otherwise

conforms to the fifteen-foot minimum front yard requirement of

the zoning code.4 These provisions of the zoning code were,

accordingly, not intended to protect Watkins's open space and

density interests. See 81 Spooner Rd., LLC, 461 Mass. at 700.

We turn next to Watkins's argument that the project's need

for a FAR variance will, in essence, cause it to crowd his

property. Floor area ratio restrictions do regulate the "bulk"

of buildings on a given parcel. See 81 Spooner Rd., LLC v.

Brookline, 452 Mass. 109, 115 (2008) ("regulation of the bulk of

4 The project also required a front yard setback variance to accommodate a parking lot on the other side of the parcel from Watkins's property.

7 a building by considering its internal area, as through the use

of a floor-to-area ratio, is a generally recognized and accepted

principle of zoning"). Watkins's argument nevertheless fails

for two reasons. First, FAR is a measure of "density of

population and intensity of use" rather than one of physical

crowding. Id. at 113-114 & n.7 (differentiating "bulk" from

"size" in 1975 amendment to G. L. c. 40A). Second,

"establishing standing requires a plaintiff to do more than

merely allege a zoning violation." Murchison, 485 Mass. at 214.

Rather, Watkins was required to allege additional,

individualized facts to establish standing. Id. A FAR limit

protects the general civic interest by limiting the intensity of

use on a given parcel. Without more, it cannot form the basis

of an individualized injury for purposes of conferring standing.

See Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge,

27 Mass. App. Ct. 491, 495 (1989) (general civic interest in

enforcement of zoning laws is not enough to confer standing).

Indeed, if the entire project were to be built underground with

no topographical changes, it would still require a FAR variance,

yet Watkins's complaint of crowding would plainly fail. It is

clear from our review of the record that the individualized

facts Watkins presses in this appeal were all related to the

open space on the NHCS property and the distance of the project

8 to his home. These interests are protected by zoning provisions

such as setbacks and minimum lot sizes rather than FAR. We

cannot say it was clearly erroneous for the judge to determine

that the 2019 project would cause Watkins no "particularized and

cognizable injury" where it substantially complied with all

dimensional and open space requirements in the zoning code.

Finally, Watkins's argument that the judge gave undue

weight to NHCS's shadow study, which rebutted his allegation

that the project would cast shadows on his property, has no

merit. NHCS submitted an expert affidavit explaining a shadow

study, which indicated that the only new shadow that would

affect Watkins's property would occur only in the morning during

the winter. Watkins first claims that the photographs that

formed the basis for the shadow study were not properly

authenticated because the expert did not take them himself. We

are not persuaded, as photographs need only be authenticated by

a witness who can testify that they are a fair and accurate

representation of what they purport to depict. See Commonwealth

v. Housen, 458 Mass. 702, 712 (2011). "Authentication is a

preliminary question of fact for the judge to decide." Renzi v.

Paredes, 452 Mass. 38, 52 (2008). It was within the discretion

of the judge to decide that NHCS's expert was competent to

authenticate the photographs. See id. Furthermore, Watkins

9 himself acknowledged that the photos in the expert's affidavit

accurately depicted his property.

Watkins next claims that, because the shadow study in

question was performed in 2018 and was based on a different

project configuration, it was not probative on his claimed

shadow harm. While such an argument could be persuasive in a

different situation, here the classroom portion of the

project -- the only addition to the property that could cast a

shadow on Watkins's property -- did not change between the 2018

study and the final project. Watkins cites Epstein, 77 Mass.

App. Ct. at 758, for the proposition that a shadow study with no

author and no affidavit is immaterial in a standing

determination. The facts here are significantly different than

in Epstein because NHCS's expert submitted an affidavit

explaining the facts underlying the study and its methodology.

Moreover, the expert was the "Principal-in-Charge" of the 2019

project, and his design firm produced the shadow study.

Furthermore, Watkins offered no competing evidence to contradict

the shadow study, and it was his burden to prove the

jurisdictional fact that the project would indeed cast shadows

upon his property. See Wooten, 66 Mass. App. Ct. at 190 n.6.

On the record presented, the judge did not clearly err in

finding that Watkins failed to articulate a harm, personal to

10 him, that is "more than de minimis," Murchison, 485 Mass. at

214, or beyond "speculative." Stone, 496 Mass. at 374.

Judgment affirmed.

By the Court (Rubin, Walsh & Hershfang, JJ.5),

Clerk

Entered: March 17, 2026.

5 The panelists are listed in order of seniority.