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-816
VON HILLEREN DONOVAN, LLC,1 & another2
vs.
BOARD OF APPEAL OF BOSTON & others.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiff Von Hilleren Donovan LLC (VHD) appeals from a
judgment of the Superior Court dismissing for lack of standing
its zoning appeal pursuant to Mass. R. Civ. P. 12 (b) (1), 365
Mass. 754 (1974). Although the traffic and parking concerns
raised by VHD are within the interests protected by the
conditional use permit ordinance at issue here, we agree with
the motion judge that VHD failed to present credible evidence to
1As is our usual practice, we take the spelling of the parties' names as they appear in the complaint. See Fish v. Accidental Auto Body, Inc., 95 Mass. App. Ct. 355, 355 n.1 (2019). We note that the subject street is Von Hillern Street.
2First Electronics Corp. First Electronics Corp. voluntarily dismissed its claims early in the litigation.
3 Dennis Kulesza and CNA Stores, Inc. substantiate its claims of aggrievement. Accordingly, we affirm
the allowance of the motion to dismiss.
1. Standard of review. "When the factual inquiry focuses
on standing, . . . a plaintiff is not required to prove by a
preponderance of the evidence that his or her claims of
particularized or specialized injury are true. 'Rather, the
plaintiff must put forth credible evidence to substantiate his
allegations.'" Butler v. Waltham, 63 Mass. App. Ct. 435, 441
(2005), quoting Marashlian v. Zoning Bd. of Appeals of
Newburyport, 421 Mass. 719, 721 (1996). When a complaint in a
zoning case has been dismissed for lack of standing under Mass.
R. Civ. P. 12 (b) (1), we review the judge's finding that the
plaintiff failed to offer credible evidence to substantiate its
claim of standing for clear error. See Sweenie v. A.L. Prime
Energy Consultants, 451 Mass. 539, 545-546 (2008).
2. Standing. "Section 11 of the 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). "This 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). "Abutters are entitled to a rebuttable presumption that
they are 'aggrieved' persons under the Zoning Act and,
2 therefore, have standing." 81 Spooner Rd., LLC v. Zoning Bd. of
Appeals of Brookline, 461 Mass. 692, 700 (2012). A defendant
can rebut the presumption by showing that an abutter's claimed
harms "are not interests that the Zoning Act is intended to
protect." Picard v. Zoning Bd. of Appeals of Westminster, 474
Mass. 570, 573 (2016), quoting 81 Spooner Rd., LLC, supra at
702. Alternately, a defendant can rebut standing "by coming
forward with credible affirmative evidence . . . [that]
'warrant[s] a finding contrary to the presumed fact' of
aggrievement." Picard, supra, quoting 81 Spooner Rd., LLC,
supra. If the presumption is rebutted, "the plaintiff must
prove standing by putting forth credible evidence to
substantiate the allegations," doing so "'by direct facts and
not by speculative personal opinion.'" 81 Spooner Rd., LLC, 461
Mass. at 701, quoting Standerwick v. Zoning Bd. of Appeals of
Andover, 447 Mass. 20, 33 (2006).
Here, the Board of Appeal of Boston (board) granted a
conditional use permit to defendants CNA Stores, Inc. and Dennis
Kulesza to build and operate a marijuana dispensary at 70 Von
Hillern Street. To do so, the board had to find (and did find),
among other things, that "the specific site is an appropriate
location for such use" and that "the use will not adversely
affect the neighborhood." Boston Zoning Code, art. 6, § 6-3(a)-
3 (b). See Lee v. Cai, 102 Mass. App. Ct. 491, 498-499 (2023).
VHD's claims of increased traffic and decreased parking are
squarely within these protected interests, as excessive traffic
and the unavailability of parking would adversely affect the
neighborhood and make the site inappropriate. As the Supreme
Judicial Court has recognized, traffic and parking availability
are "typical zoning concerns." Picard, 474 Mass. at 574. The
requirements of an appropriate site and no adverse effect on the
neighborhood are nothing like dimensional lot width
requirements, which do not concern traffic or parking. See
Murchison v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209,
214 (2020).
Furthermore, we reject the dispensary's assertion that the
zoning code's conditional use permit article does not concern
itself with parking because the code contains separate minimum
off-street parking requirements. Important concerns can be
addressed by multiple parts of the zoning code; nothing in our
law mandates that each concern be addressed by only one zoning
requirement. Indeed, the board here expressly considered
traffic and parking in deciding to issue the conditional use
permit. See Marashlian, 421 Mass. at 722 ("The plaintiffs claim
to fear increased traffic and decreased parking availability due
4 to the defendants' development of the lot. Such concerns are
legitimately within the scope of the zoning laws").
Moving on to the next step of the standing analysis, we
agree with the motion judge that the dispensary submitted
credible evidence to rebut VHD's presumptive standing. The
Bayside Engineering report, prepared by Kenneth Cram, a
professional traffic engineer, and based on the Institute of
Transportation Engineers Trip Generation Manual, calculated that
the proposed dispensary would generate 422 vehicle trips per
day. As calculated, at the busiest times there would be an
additional car once every six minutes on Von Hillern Street.
The report opined that the road width, current traffic, and
parking spaces are suitable to handle the added driving without
issue. Further addressing parking, the report stated that, in
addition to the added spaces that the dispensary will create,
there are sufficiently available on street parking spaces to the
north of Locust Street.4 Because the dispensary adequately
rebutted VHD's claims aggrievement, the burden shifted to VHD to
present credible evidence to substantiate its claims. See 81
Spooner Rd., LLC, 461 Mass. at 701.
The report states that on street parking to the south of 4
Locust Street is used more frequently, but VHD does not own the buildings where these spaces are located.
Free access — add to your briefcase to read the full text and ask questions with AI
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-816
VON HILLEREN DONOVAN, LLC,1 & another2
vs.
BOARD OF APPEAL OF BOSTON & others.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiff Von Hilleren Donovan LLC (VHD) appeals from a
judgment of the Superior Court dismissing for lack of standing
its zoning appeal pursuant to Mass. R. Civ. P. 12 (b) (1), 365
Mass. 754 (1974). Although the traffic and parking concerns
raised by VHD are within the interests protected by the
conditional use permit ordinance at issue here, we agree with
the motion judge that VHD failed to present credible evidence to
1As is our usual practice, we take the spelling of the parties' names as they appear in the complaint. See Fish v. Accidental Auto Body, Inc., 95 Mass. App. Ct. 355, 355 n.1 (2019). We note that the subject street is Von Hillern Street.
2First Electronics Corp. First Electronics Corp. voluntarily dismissed its claims early in the litigation.
3 Dennis Kulesza and CNA Stores, Inc. substantiate its claims of aggrievement. Accordingly, we affirm
the allowance of the motion to dismiss.
1. Standard of review. "When the factual inquiry focuses
on standing, . . . a plaintiff is not required to prove by a
preponderance of the evidence that his or her claims of
particularized or specialized injury are true. 'Rather, the
plaintiff must put forth credible evidence to substantiate his
allegations.'" Butler v. Waltham, 63 Mass. App. Ct. 435, 441
(2005), quoting Marashlian v. Zoning Bd. of Appeals of
Newburyport, 421 Mass. 719, 721 (1996). When a complaint in a
zoning case has been dismissed for lack of standing under Mass.
R. Civ. P. 12 (b) (1), we review the judge's finding that the
plaintiff failed to offer credible evidence to substantiate its
claim of standing for clear error. See Sweenie v. A.L. Prime
Energy Consultants, 451 Mass. 539, 545-546 (2008).
2. Standing. "Section 11 of the 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). "This 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). "Abutters are entitled to a rebuttable presumption that
they are 'aggrieved' persons under the Zoning Act and,
2 therefore, have standing." 81 Spooner Rd., LLC v. Zoning Bd. of
Appeals of Brookline, 461 Mass. 692, 700 (2012). A defendant
can rebut the presumption by showing that an abutter's claimed
harms "are not interests that the Zoning Act is intended to
protect." Picard v. Zoning Bd. of Appeals of Westminster, 474
Mass. 570, 573 (2016), quoting 81 Spooner Rd., LLC, supra at
702. Alternately, a defendant can rebut standing "by coming
forward with credible affirmative evidence . . . [that]
'warrant[s] a finding contrary to the presumed fact' of
aggrievement." Picard, supra, quoting 81 Spooner Rd., LLC,
supra. If the presumption is rebutted, "the plaintiff must
prove standing by putting forth credible evidence to
substantiate the allegations," doing so "'by direct facts and
not by speculative personal opinion.'" 81 Spooner Rd., LLC, 461
Mass. at 701, quoting Standerwick v. Zoning Bd. of Appeals of
Andover, 447 Mass. 20, 33 (2006).
Here, the Board of Appeal of Boston (board) granted a
conditional use permit to defendants CNA Stores, Inc. and Dennis
Kulesza to build and operate a marijuana dispensary at 70 Von
Hillern Street. To do so, the board had to find (and did find),
among other things, that "the specific site is an appropriate
location for such use" and that "the use will not adversely
affect the neighborhood." Boston Zoning Code, art. 6, § 6-3(a)-
3 (b). See Lee v. Cai, 102 Mass. App. Ct. 491, 498-499 (2023).
VHD's claims of increased traffic and decreased parking are
squarely within these protected interests, as excessive traffic
and the unavailability of parking would adversely affect the
neighborhood and make the site inappropriate. As the Supreme
Judicial Court has recognized, traffic and parking availability
are "typical zoning concerns." Picard, 474 Mass. at 574. The
requirements of an appropriate site and no adverse effect on the
neighborhood are nothing like dimensional lot width
requirements, which do not concern traffic or parking. See
Murchison v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209,
214 (2020).
Furthermore, we reject the dispensary's assertion that the
zoning code's conditional use permit article does not concern
itself with parking because the code contains separate minimum
off-street parking requirements. Important concerns can be
addressed by multiple parts of the zoning code; nothing in our
law mandates that each concern be addressed by only one zoning
requirement. Indeed, the board here expressly considered
traffic and parking in deciding to issue the conditional use
permit. See Marashlian, 421 Mass. at 722 ("The plaintiffs claim
to fear increased traffic and decreased parking availability due
4 to the defendants' development of the lot. Such concerns are
legitimately within the scope of the zoning laws").
Moving on to the next step of the standing analysis, we
agree with the motion judge that the dispensary submitted
credible evidence to rebut VHD's presumptive standing. The
Bayside Engineering report, prepared by Kenneth Cram, a
professional traffic engineer, and based on the Institute of
Transportation Engineers Trip Generation Manual, calculated that
the proposed dispensary would generate 422 vehicle trips per
day. As calculated, at the busiest times there would be an
additional car once every six minutes on Von Hillern Street.
The report opined that the road width, current traffic, and
parking spaces are suitable to handle the added driving without
issue. Further addressing parking, the report stated that, in
addition to the added spaces that the dispensary will create,
there are sufficiently available on street parking spaces to the
north of Locust Street.4 Because the dispensary adequately
rebutted VHD's claims aggrievement, the burden shifted to VHD to
present credible evidence to substantiate its claims. See 81
Spooner Rd., LLC, 461 Mass. at 701.
The report states that on street parking to the south of 4
Locust Street is used more frequently, but VHD does not own the buildings where these spaces are located.
5 VHD failed to meet this burden. VHD presented affidavits
from Gregg Donovan, its owner, and Paul Tyrell, a registered
professional engineer. Donovan stated that "[t]he traffic
patterns will be disturbed by the addition of a retail cannabis
establishment." Donovan, however, did not explain how the
traffic pattern will change, the extent of the change, or why he
believes a change will occur. "Conjecture, personal opinion,
and hypothesis are . . . insufficient." Butler, 63 Mass. App.
Ct. at 441.
Tyrell opined that, "[i]f constructed, the Project will
cause adverse impacts to traffic conditions in the area of the
Property including significantly more congested areas on Von
Hillern Street and Locust Street." Tyrell also stated "[a]ll
street parking is found to be fully utilized by the current
business and there would be no available parking for retail
customers in this vicinity." As with Donovan, Tyrell provided
no analysis or explanation for his claims. Because these
affidavits offer conclusory statements without explanation, they
fail to adequately demonstrate harm. Cohen v. Zoning Board of
Appeals of Plymouth, 35 Mass. App. Ct. 619, 623 (1993) ("general
and conclusory allegations of the affidavit cannot be
6 transformed by inference into genuine triable issues").5
Accordingly, VHD failed to produce credible evidence to
substantiate its standing, and the judge properly granted the
dispensary's motion to dismiss.
Judgment affirmed.
By the Court (Desmond, Ditkoff & Englander, JJ.6),
Clerk
Entered: May 30, 2025.
5 Similarly unhelpful are Tyrell's suggestions that Bayside Engineering's estimate of the percentage of the dispensary's customers that would arrive on foot is optimistic. The Bayside Engineering report calculated that Von Hillern Street was sufficiently equipped, for both traffic and parking, even if all of the dispensary's customers arrived by motor vehicle.
6 The panelists are listed in order of seniority.