VIRGINIA C. MUSKER v. ZONING BOARD OF APPEALS OF BILLERICA & Another.

• Court: Massachusetts Appeals Court
• Decided: October 31, 2023
• Docket: 22-P-0921
• Status: Unpublished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

22-P-921

VIRGINIA C. MUSKER

vs.

ZONING BOARD OF APPEALS OF BILLERICA & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff brought suit against the Zoning Board of

Appeals of Billerica (ZBA) and JR Development LLC (developer),

seeking to challenge the ZBA's decision to grant dimensional

variances to the developer. A Superior Court judge ordered that

summary judgment enter for the defendants on the ground that the

plaintiff lacked standing under G. L. c. 40A, § 17, to challenge

the ZBA's decision. The plaintiff appeals, arguing that she has

standing because the proposed project will harm her in three

ways: by increasing water runoff to her property, by increasing

population density, and by lowering the value of her property.

As we conclude that the plaintiff failed to substantiate these

claimed injuries with credible evidence, we affirm.

1 JR Development LLC. Background. The following facts are undisputed. The

property that is the subject of the variances (subject property)

is located in a rural residence district in Billerica. The

variances would enable the developer to divide the subject

property into two buildable lots; the developer intends to

construct a duplex on one lot and a single-family home on the

other. The plaintiff's property abuts the rear boundary of the

subject property.

In the spring of 2019, pursuant to a building permit, the

developer demolished an existing residential structure on the

subject property and cleared several trees and bushes and other

vegetation. Later the same year, the developer applied for a

stormwater management permit from the Board of Health of

Billerica (Board of Health). The Board of Health's peer review

engineer, BETA Group, Inc. (BETA), reviewed the developer's

application. Thereafter, BETA engineer Phil Paradis stated at

the public hearing that, upon review of both the application and

information provided by neighborhood residents, he concluded

that the developer's proposed stormwater mitigation measures

would result in "no increase in peak rate of [water] runoff or

volume of runoff." Paradis explained that, although the

mitigation measures would not solve the water drainage issues

the neighborhood was already experiencing, the developer had

"made sure that [it] . . . used [best management practices] so

2 that [the neighborhood] will not have an increase in

runoff. . . . [T]he water problems will not get any worse."

BETA submitted a written report to the Board of Health

documenting its findings.

In November 2019 the Board of Health voted unanimously to

grant the developer a stormwater management permit with

conditions, which included that all construction had to be

completed in accordance with the approved plans. The Board of

Health found that the developer's proposal included "adequate

measures to protect the public health and environment and

complie[d] with the intent of Board of Health Rules and

Regulations." It further found that "approval of the

applicant's request will not be detrimental to the public health

and environment."

In February 2020 the ZBA opened a public hearing on the

developer's application for the variances. In connection with

that application, the Board of Health provided the following

written comments to the ZBA:

"The applicant has obtained a Stormwater Management Permit for the proposed development of two (2) separate dwellings at this site. This project was reviewed by BETA Group, the Board of Health's Consulting Engineer for compliance with the Board of Health's Stormwater Management Regulations. It has been determined that the actions proposed by the applicant are more than adequate measures to protect public health and the environment and complies with Board of Health Rules and Regulations. In particular, stormwater runoff to abutting properties will be reduced by sixty percent (60%)."

3 In July 2020 the ZBA voted unanimously, over the objections

of the plaintiff and other abutters, to grant the variances.

Citing the Board of Health's comments, the ZBA found that "the

construction of a retention area as approved by the Board of

Health would help control water" and that "the storm water

management plan is a factor that will allow for the requested

relief to be granted." It also found that "the existing lot is

over [three] acres[,] which allows for two lots each well over

the required 50,000 square foot minimum required for the zone[,]

therefore not substantially derogating from the intent or

purpose of this Zoning By-Law."

The plaintiff then initiated the underlying action, in

which she later moved for summary judgment. The developer filed

a cross-motion, arguing that the plaintiff was not a "person

aggrieved" under G. L. c. 40A, § 17, and thus lacked standing to

appeal the ZBA's decision. The judge held a hearing on both

motions, after which he denied the plaintiff's motion, allowed

the developer's cross-motion, and ordered that judgment enter

for the defendants.

Discussion. Under G. L. c. 40A, § 17, "only a 'person

aggrieved' has standing to challenge a decision of a zoning

board of appeals." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals

of Brookline, 461 Mass. 692, 700 (2012). Abutters enjoy "a

4 rebuttable presumption" that they are persons "aggrieved." Id.

To rebut the presumption, the defendant must "offer[] evidence

'warranting a finding contrary to the presumed fact.'" Id.,

quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass.

255, 258 (2003). The defendant can meet this burden at the

summary judgment stage "by coming forward with credible

affirmative evidence that refutes the presumption," such as

"affidavits of experts establishing that an abutter's

allegations of harm are unfounded or de minimis." 81 Spooner

Rd., LLC, supra at 702. The defendant can also meet its burden

by referencing materials in the summary judgment record, "unmet

by countervailing materials," which demonstrate that the

plaintiff "has no reasonable expectation of proving a legally

cognizable injury" (quotations and citation omitted). Id. at

703.

If the defendant rebuts the presumption, "the plaintiff

must prove standing by putting forth credible evidence to

substantiate the allegations" of harm. 81 Spooner Rd., LLC, 461

Mass. at 701. Evidence is credible if it "provide[s] specific

factual support for each of the claims of particularized injury"

and is "of a type on which a reasonable person could rely to

conclude that the claimed injury likely will flow from the

board's action." Murchison v. Zoning Bd. of Appeals of

Sherborn, 485 Mass. 209, 215 (2020), quoting Butler v. Waltham,

5 63 Mass. App. Ct. 435, 441 (2005). "Neither conjecture nor

speculative personal opinion substitutes for proof." Murchison,

supra.

Because the judge resolved the question of standing on

summary judgment, our review is de novo. See 81 Spooner Rd.,

LLC, 461 Mass. at 699. We view the record in the light most

favorable to the plaintiff, the party against whom judgment

entered. See id.

1. Water runoff. The plaintiff's primary claim of injury

is that the proposed project will increase water runoff to her

property, raising the risk of flooding and drainage issues.

According to the plaintiff, the developer failed to offer

sufficient evidence to rebut this claim and so her standing must

be presumed unless disproven at trial. Alternatively, the

plaintiff argues that, even without the benefit of the

presumption, she offered credible evidence to substantiate her

claim. Neither argument persuades us.

The materials relied on by the developer were adequate to

rebut the presumption of standing. In support of summary

judgment, the developer submitted an affidavit from John Noonan

-- a civil engineer and land surveyor who worked on the proposed

project -- which described the steps the developer took to

obtain a stormwater management permit from the Board of Health.

Noonan explained that, to obtain the permit, the developer was

6 required to submit a watershed analysis that "allow[ed] for a

full understanding of the amount of stormwater flow that enters

the property and how best to treat, mitigate and allow for the

continued stormwater flow with no impact to the downstream

watershed." BETA then reviewed the application to ensure that

the site design met "the performance standards of the Stormwater

Management Regulations." In Noonan's opinion, "to a high degree

of certainty," the approved site design, "which represents the

work product of the [developer's] civil engineer, the [t]own's

civil engineer, and the [t]own's peer review engineer, provides

more than adequate protection from 'flooding,' 'poor drainage,'

and 'overflows' to all of the abutters, including [the

plaintiff]."

Noonan's affidavit, which was uncontroverted, was

sufficient to show that the plaintiff's claimed injury was

unfounded or de minimis. See Standerwick v. Zoning Bd. of

Appeals of Andover, 447 Mass. 20, 35 (2006) ("through

unchallenged affidavits of its experts, the developer

established that the plaintiff's claims of traffic and drainage

problems were unfounded"). The plaintiff argues otherwise, on

the basis that Noonan is "not disinterested" and so could be

found not credible if the case goes to trial. To survive

summary judgment, however, a nonmoving party must do more than

"simply state" that the moving party's witness was "interested"

7 and "thus his testimony could be disregarded." Adams v.

Schneider Electric USA, 492 Mass. 271, 289 (2023). The

nonmoving party must instead "identify specific material in the

record" controverting the moving party's evidence. Id. Not

only did the plaintiff fail to do so here, there are

uncontroverted materials in the record that support Noonan's

conclusions, including the BETA report, Paradis's comments to

the Board of Health, and the Board of Health's ultimate decision

to grant the stormwater management permit.

Thus, because the developer rebutted the presumption of

standing, the burden was on the plaintiff to substantiate her

claim with credible evidence. In this regard the plaintiff

offered her own declaration, declarations from her neighbors,

and photographs of her property, all to show that the water

runoff to her property increased after the developer demolished

the existing structure on the subject property in 2019. These

materials, however, do not bear on whether "the claimed injury

likely will flow from the [ZBA's] action," that is, the ZBA's

decision to grant the variances. Murchison, 485 Mass. at 215,

quoting Butler, 63 Mass. App. Ct. at 441. The developer

demolished the existing structure, pursuant to the building

permit, before the start of the ZBA proceedings. Any water

impacts caused by the demolition are therefore not the proper

focus in assessing whether the plaintiff has standing to

8 challenge the ZBA's decision; the relevant question, rather, is

whether there is credible evidence that the proposed project, as

reviewed and approved by the ZBA, will increase water runoff to

the plaintiff's property. See Murchison, supra at 217-218

(judge properly credited defense expert's testimony concerning

water runoff over that of plaintiffs' expert, where subject

property "already ha[d] been partially cleared," and plaintiffs'

expert conducted comparison only between property "in a natural

state and a developed state" while defense expert "compared

natural, cleared, and developed states"). Although the

plaintiff is correct that credible evidence in this context is

not limited to expert testimony, see Krafchuk v. Planning Bd. of

Ipswich, 453 Mass. 517, 524-525 (2009), she offered no evidence,

expert or otherwise, to refute the developer's evidence that the

mitigation measures included in the proposed project will result

in no increase in water runoff to neighboring properties,

including the plaintiff's.

We disagree with the plaintiff's contention that the

mitigation measures should be disregarded when assessing

standing and that the analysis should instead proceed on the

"assum[ption] that the [d]eveloper [will] fail[] to implement

(and maintain)" the mitigation measures. The case on which the

plaintiff relies, Jepson v. Zoning Bd. of Appeals of Ipswich,

9 450 Mass. 81 (2007), does not support her position. 2 In Jepson,

the ZBA had granted a comprehensive permit under G. L. c. 40B

with conditions relating to drainage and stormwater management,

including that the order of conditions issued by the local

conservation commission be made part of the comprehensive

permit. See id. at 85. The court held that the plaintiff had

standing to challenge the comprehensive permit because he

presented credible evidence that the project would increase

flooding to his property despite the conditions imposed by the

ZBA. See id. at 91-92. 3 In contrast here, the plaintiff put

forth no such evidence and has thus failed to substantiate her

claim of injury. See Murchison, 485 Mass. at 217 (abutters did

not establish standing based on harm from water runoff or

flooding, where they failed to counter defense expert's

testimony that any water runoff after completion of project,

which included "various mitigation measures," would be no

greater than runoff from property in undeveloped state).

2 The other case cited by the plaintiff, Sweenie v. Planning Bd. of Groton, 69 Mass. App. Ct. 477 (2007), was overturned by the Supreme Judicial Court on further appellate review. See Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 (2008). 3 Specifically, the plaintiff presented documents from the

conservation commission discussing the existence and effect of beaver dams constructed after the grant of the comprehensive permit. See Jepson, 450 Mass. at 91. The documents stated that the beaver dams had raised the water elevation on the plaintiff's property, which "necessarily ha[d] an impact on the project's storm water detention function" such that a "redesign . . . [was] in order." Id. at 92.

10 2. Population density. The plaintiff next argues that she

will be harmed by the proposed project because it will increase

population density and, as a result, the risk of fire. Even

assuming that fire safety is an interest protected by the zoning

bylaw, 4 we agree with the judge that the plaintiff's concerns are

speculative and do not confer standing.

Noonan averred in his affidavit, and the plaintiff did not

dispute, that the distance from the closest part of the proposed

new buildings to the plaintiff's property line is 199.1 feet,

and the distance to the plaintiff's home is 310 feet, well

within the setback requirements of the zoning bylaw. This was

sufficient to rebut the presumption of standing. See 81 Spooner

Rd., LLC, 461 Mass. at 702. In response the plaintiff asserted,

without any supporting evidence, that the risk of fire will

"increase[] exponentially" because the new buildings will be

larger and closer to the plaintiff's property line than the

original structure. This assertion constitutes "speculative

personal opinion," which is not credible evidence substantiating

the claimed injury. Murchison, 485 Mass. at 215. See Kenner v.

Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 121 (2011)

4 The judge concluded that fire safety is an issue that "should be pursued under local and state building codes and procedures." The plaintiff does not directly address this ruling.

11 ("Aggrievement requires a showing of more than minimal or

slightly appreciable harm"). 5

3. Diminution in property value. Finally, the plaintiff

contends that "the value of her property will diminish based on

the increased risk of flooding, drainage and excess water

collection" caused by the proposed project. As we have

explained, the plaintiff failed to substantiate her claim that

the proposed buildings, as opposed to the demolition of the

prior building, will increase water runoff to her property. For

at least this reason, the plaintiff likewise failed to prove

5 We need not address the plaintiff's argument, raised for the first time in her reply brief, that the new building will infringe on her "privacy, peace and quiet." See Commonwealth v. Stewart, 460 Mass. 817, 831 (2011) (argument raised for first time in reply brief is waived). We note that, in any event, the plaintiff offered only speculative assertions and no credible evidence in support of her claims of density-related harm. See Murchison, 485 Mass. at 215 (judge properly found that abutter's "testimony that he expect[ed] an increase in lighting, traffic and noise as a result of a new house being built across the street on a three-acre lot" was speculative and insufficient to prove aggrievement).

12 aggrievement based on diminution in the value of her property.

Cf. Murchison, 485 Mass. at 215-217.

Judgment affirmed.

By the Court (Wolohojian, Shin & Ditkoff, JJ. 6),

Clerk

Entered: October 31, 2023.

6 The panelists are listed in order of seniority.