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
24-P-1019
TROPICAL FAY'S - II, LLC, & another1
vs.
ZONING BOARD OF APPEAL OF BOSTON & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Tropical Fay's - II, LLC, and Tropical
Foods International, Inc., appealed the grant of a variance by
the Board of Appeal of Boston (board) to the defendants, Madison
Trinity 2085 Development, LLC, with respect to the height and
floor area ratio of a housing development in Boston. A judge of
the Land Court dismissed the plaintiffs' variance appeal,
concluding that the plaintiffs lacked standing. We affirm.
Discussion. The facts of the underlying dispute and the
decision of the Land Court judge are well known to the parties
and will be repeated here only as necessary.
1 Tropical Foods International, Inc.
2 Madison Trinity 2085 Development, LLC. "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 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 citations omitted).
Id. Once the presumption is rebutted, "the plaintiff must prove
standing by putting forth credible evidence to substantiate the
allegations." 81 Spooner Rd., LCC v. Zoning Bd. of Appeals of
Brookline, 461 Mass. 692, 701 (2012).
The burden of proof of standing always remains on the
plaintiff, even when the burden of production shifts. See 81
Spooner Rd., 461 Mass. at 701. "The plaintiff must establish —-
by direct facts and not by speculative personal opinion —- that
his injury is special and different from the concerns of the
2 rest of the community" (citation and quotations omitted).
Picard, 474 Mass. at 573-574. See Wooton v. Crayton, 66 Mass.
App. Ct. 187, 190 n.6 (2006) (in motion where defendant makes
"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"). At this point, "[s]tanding essentially becomes a
question of fact for a judge," and the "judge's ultimate
findings on this issue will not be overturned unless shown to be
clearly erroneous." Kenner v. Zoning Bd. of Appeals of Chatham,
459 Mass. 115, 119 (2011).
Here, the judge determined that plaintiffs enjoyed a
presumption of standing as an abutter, which the defendant does
not dispute. See Murchison v. Zoning Bd. of Appeals of
Sherborn, 485 Mass. 209, 213 (2020) (abutters have presumptive
standing). The judge further determined that the defendants had
rebutted the presumption,3 and that the plaintiffs lacked
standing, because "the plaintiffs have not produced evidence of
3 The defendant produced sufficient evidence to rebut the presumption of standing through the affidavits of Kenan Bigby, the managing director of Trinity Financial, and Joshua McLinden, an assistant project manager at Madison Park Development Corporation. See Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 258 (2003) ("To rebut a presumption of a plaintiff's standing as an aggrieved person, a defendant must offer evidence").
3 a particularized harm and have only articulated speculative
allegations."
To establish standing, the plaintiffs produced an expert
report4 that sought to demonstrate the harms they alleged the
variance would cause through overburdening their allocated
parking spaces and increased traffic. The report explained
that, because of the increased number of units in the
defendant's housing development, there will be residents without
an allocated parking spot who seek parking along the curbs and
in the general area. Some of these residents, the report
predicted, will park in the plaintiffs' allocated spots,
"mak[ing] it more difficult for [the plaintiffs' customers] to
find a free parking space" and "prompt[ing] some [customers] to
take their business elsewhere."
The judge concluded that the plaintiff's contention that
the variance will interfere with their allocated parking spaces
was speculative. Regarding the increased traffic, the judge
concluded that the plaintiffs, through their expert report,
"have failed to put forth any credible evidence that any
increase in traffic attributable to the project will cause them
4 Marc Warner, the author of the report, holds a Ph.D. in transportation systems from the Massachusetts Institute of Technology, and has thirty years of experience as a consultant specializing in transportation economics, travel demand forecasting, and transportation policy.
4 any injury in the use of [their] property, such as a decrease in
a level of service of a nearby intersection that will impede
access to their site." Without this evidence, the judge
determined, "general allegations of increased traffic are not
cognizable to establish standing."
The plaintiffs argue that the judge's conclusion that the
plaintiffs' parking aggrievement is speculative is clear error
because it is inconsistent with the judge's finding that "the
plaintiffs have provided expert opinion on the impact the
project would have on the availability of parking." This
argument is unpersuasive. The judge was not obligated to credit
the conclusion of the plaintiff's expert report, which
determined that an unspecified number of housing development
residents would sometimes decide to park in the plaintiff's lot
during times where the parking lot is already full, and, that
this incursion would materially impact the plaintiffs. See
Daniels v. Board of Registration in Med., 418 Mass. 380, 392
(1994) ("[t]he law should not, and does not, give the opinions
of experts on either side of . . . [a]n issue the benefit of
conclusiveness"). See also Butler v. Waltham, 63 Mass. App. Ct.
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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
24-P-1019
TROPICAL FAY'S - II, LLC, & another1
vs.
ZONING BOARD OF APPEAL OF BOSTON & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Tropical Fay's - II, LLC, and Tropical
Foods International, Inc., appealed the grant of a variance by
the Board of Appeal of Boston (board) to the defendants, Madison
Trinity 2085 Development, LLC, with respect to the height and
floor area ratio of a housing development in Boston. A judge of
the Land Court dismissed the plaintiffs' variance appeal,
concluding that the plaintiffs lacked standing. We affirm.
Discussion. The facts of the underlying dispute and the
decision of the Land Court judge are well known to the parties
and will be repeated here only as necessary.
1 Tropical Foods International, Inc.
2 Madison Trinity 2085 Development, LLC. "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 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 citations omitted).
Id. Once the presumption is rebutted, "the plaintiff must prove
standing by putting forth credible evidence to substantiate the
allegations." 81 Spooner Rd., LCC v. Zoning Bd. of Appeals of
Brookline, 461 Mass. 692, 701 (2012).
The burden of proof of standing always remains on the
plaintiff, even when the burden of production shifts. See 81
Spooner Rd., 461 Mass. at 701. "The plaintiff must establish —-
by direct facts and not by speculative personal opinion —- that
his injury is special and different from the concerns of the
2 rest of the community" (citation and quotations omitted).
Picard, 474 Mass. at 573-574. See Wooton v. Crayton, 66 Mass.
App. Ct. 187, 190 n.6 (2006) (in motion where defendant makes
"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"). At this point, "[s]tanding essentially becomes a
question of fact for a judge," and the "judge's ultimate
findings on this issue will not be overturned unless shown to be
clearly erroneous." Kenner v. Zoning Bd. of Appeals of Chatham,
459 Mass. 115, 119 (2011).
Here, the judge determined that plaintiffs enjoyed a
presumption of standing as an abutter, which the defendant does
not dispute. See Murchison v. Zoning Bd. of Appeals of
Sherborn, 485 Mass. 209, 213 (2020) (abutters have presumptive
standing). The judge further determined that the defendants had
rebutted the presumption,3 and that the plaintiffs lacked
standing, because "the plaintiffs have not produced evidence of
3 The defendant produced sufficient evidence to rebut the presumption of standing through the affidavits of Kenan Bigby, the managing director of Trinity Financial, and Joshua McLinden, an assistant project manager at Madison Park Development Corporation. See Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 258 (2003) ("To rebut a presumption of a plaintiff's standing as an aggrieved person, a defendant must offer evidence").
3 a particularized harm and have only articulated speculative
allegations."
To establish standing, the plaintiffs produced an expert
report4 that sought to demonstrate the harms they alleged the
variance would cause through overburdening their allocated
parking spaces and increased traffic. The report explained
that, because of the increased number of units in the
defendant's housing development, there will be residents without
an allocated parking spot who seek parking along the curbs and
in the general area. Some of these residents, the report
predicted, will park in the plaintiffs' allocated spots,
"mak[ing] it more difficult for [the plaintiffs' customers] to
find a free parking space" and "prompt[ing] some [customers] to
take their business elsewhere."
The judge concluded that the plaintiff's contention that
the variance will interfere with their allocated parking spaces
was speculative. Regarding the increased traffic, the judge
concluded that the plaintiffs, through their expert report,
"have failed to put forth any credible evidence that any
increase in traffic attributable to the project will cause them
4 Marc Warner, the author of the report, holds a Ph.D. in transportation systems from the Massachusetts Institute of Technology, and has thirty years of experience as a consultant specializing in transportation economics, travel demand forecasting, and transportation policy.
4 any injury in the use of [their] property, such as a decrease in
a level of service of a nearby intersection that will impede
access to their site." Without this evidence, the judge
determined, "general allegations of increased traffic are not
cognizable to establish standing."
The plaintiffs argue that the judge's conclusion that the
plaintiffs' parking aggrievement is speculative is clear error
because it is inconsistent with the judge's finding that "the
plaintiffs have provided expert opinion on the impact the
project would have on the availability of parking." This
argument is unpersuasive. The judge was not obligated to credit
the conclusion of the plaintiff's expert report, which
determined that an unspecified number of housing development
residents would sometimes decide to park in the plaintiff's lot
during times where the parking lot is already full, and, that
this incursion would materially impact the plaintiffs. See
Daniels v. Board of Registration in Med., 418 Mass. 380, 392
(1994) ("[t]he law should not, and does not, give the opinions
of experts on either side of . . . [a]n issue the benefit of
conclusiveness"). See also Butler v. Waltham, 63 Mass. App. Ct.
435, 441 (2005) ("Conjecture, personal opinion, and hypothesis
are . . . insufficient" to establish standing). The plaintiffs'
claim that the housing development's residents will infringe on
their parking lot is indeed speculative given the proximity to
5 public transit and the housing development's plan to incentivize
residents to utilize only resident-assigned parking spots or
public street parking. See Harvard Sq. Defense Fund, Inc. v.
Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493-494 (1989)
(parking problems "at best speculative" where project close to
transit and "special conditions annexed to the permits in order
to discourage the use of automobiles"). Any material impact to
the plaintiffs is also speculative as the expert report
demonstrated that for twenty hours of an average day, the
plaintiff's parking lot is below fifty percent utilization, and
that at no point is the lot utilized above seventy percent of
its capacity.5 Further, the plaintiffs maintain the right to tow
unauthorized vehicles that are parked in their lot. See id. at
493-494 (parking aggrievement unsubstantiated in part where
"plaintiffs have legal recourse if [unauthorized] vehicles park
on their streets").
For similar reasons, the judge did not commit clear error
in finding that the plaintiff's alleged injury as to traffic was
speculative. There was no evidence, either from the plaintiffs'
5 During oral argument, the plaintiffs claimed that grocery store attendance is cyclical, and that because the report's data was recorded during a low use month, the extent of the lot's use by store customers is higher than the report demonstrates. It was the plaintiffs' burden to demonstrate this to the Land Court, and there is no evidence in the record to support this claim.
6 expert report or elsewhere in the record, that a variance to
allow an increase in housing development residents would result
in a greater burden on the access to or egress from the
plaintiffs' parking lot.6
Judgment affirmed.
By the Court (Ditkoff, Singh & Smyth, JJ.7),
Clerk
Entered: July 29, 2025.
6 Because we affirm the judge's motion to dismiss on the grounds that the plaintiffs have not demonstrated a sufficient particularized injury, we need not reach the question of whether the plaintiff's alleged injuries are cognizable under the Boston zoning enabling act, St. 1956, c. 665, § 11, as amended through St. 1993, c. 461, § 2.
7 The panelists are listed in order of seniority.