STEVEN E. STONE, Trustee, & Another v. ZONING BOARD OF APPEALS OF NORTHBOROUGH & Another.

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

23-P-555

STEVEN E. STONE, trustee,1 & another2

vs.

ZONING BOARD OF APPEALS OF NORTHBOROUGH & another.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Steven E. Stone, as trustee of the One

Fifty-Two Bartlett Street Trust, and Anne Beckstrom, brought the

underlying action pursuant to G. L. c. 40A (the zoning act) in

the Superior Court challenging a decision by defendant zoning

board of appeals of Northborough (board), to grant a variance to

defendant Cable Matters, Inc. (Cable Matters), allowing it to

construct a warehouse and office space on three parcels of land

in the town's industrial district and groundwater protection

overlay district. A judge of the Superior Court allowed Cable

Matters's motion for summary judgment, holding that the

plaintiffs did not have standing to challenge the board's

1 Of the One Fifty-Two Bartlett Street Trust.

2 Anne Beckstrom.

3 Cable Matters, Inc.

decision. The plaintiffs now appeal the judgment dismissing

their complaint. We vacate and remand.

1. Background. We summarize the undisputed facts. In

February 2020, Cable Matters applied to the board for a variance

to construct a 20,000 square foot warehouse, of which 17,000

square feet of floor space would be used for a warehouse and the

remaining 3,000 square feet of floor space would be used as

office space, on three parcels of land in the town of

Northborough (town). The parcels, 1 Lyman Street, 29 Lyman

Street, and 0 Bartlett Street, are located directly across the

street from the plaintiffs' residence, 152 Bartlett Street.

There is already heavy industrial and commercial traffic from

large trucks in the area, and that traffic occurs twenty-four

hours a day, seven days a week. Cable Matters anticipates that

only three percent of its products would pass through its

proposed warehouse, as the rest of the products are sold through

Amazon. The three percent of the products that would pass

through the Cable Matters warehouse would be delivered to

customers, and there would be no on-site pickup by customers.

As such, Cable Matters anticipates that its proposed building

would create the following additional traffic, all during normal

business hours: eight passenger cars, a United States Postal

Service (USPS) van once per day between 11 A.M. and 1 P.M., a

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United Parcel Service (UPS) vehicle twice per day before 6 P.M.,

and one tractor trailer every two or three months.

The parcels on which Cable Matters plans to build are

within the town's groundwater protection overlay district (GPOD)

(an area that permits recreation, conservation, and agricultural

use, as well as some single-family residential use), which means

that Cable Matters is required to obtain a variance in order to

build the proposed warehouse and office space. After a hearing

on Cable Matters's variance request on July 1, 2020, the board

granted the variance. The board found that, due to the unique

characteristics of the parcels and their location in a far

corner of the GPOD, a literal interpretation of the GPOD zoning

bylaw would involve substantial hardship. The board also found

that the requested variance would "not constitute substantial

detriment to the public good, nor would it nullify or

substantially derogate from the intent or purpose of the Town's

zoning bylaw." The plaintiffs appealed this decision on

September 8, 2020, by filing an action in the Superior Court

pursuant to G. L. c. 40A, § 17. A judge of the Superior Court

allowed a motion for summary judgment by defendant Cable

Matters, and subsequently issued a judgment dismissing the case

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against all defendants. It is an appeal from that judgment that

we have before us.4

Cable Matters's motion for summary judgment in the Superior

Court asserted that the plaintiffs lacked standing to challenge

the board's decision. The plaintiffs argued that they had

standing because their property interests would be affected in

unique ways due to (1) excessive noise during construction on

the premises, (2) excessive post-construction noise from

trucking and loading operations, (3) fumes and offensive odors

from delivery trucks, (4) unnatural light, and (5) loss of open

space.

The motion judge held that the claimed injury of loss of

open space could not support standing because the claim was

based on the fact that Cable Matters would be cutting down trees

on its own property, not on the plaintiffs' property, and

therefore the plaintiffs had no legally cognizable interest in

those trees. The judge also held that the unnatural light from

Cable Matters's operations was not an interest protected by the

4 In addition to being in the GPOD, the parcels are in the

town's industrial zoning district. Because it is in the GPOD,

Cable Matters is also required to obtain a special permit to

construct a warehouse. The application for the special permit

was addressed to the town planning board, not the zoning board

of appeals. The planning board granted the special permit, but

included the following limitations: the parking lot lights must

be turned off by 9 P.M. each evening, deliveries must be limited

to the hours of 9 A.M. to 8 P.M. on weekdays, and the driveway

on Lyman Street must be restricted to exit only. The plaintiffs

did not appeal from the planning board's decision.

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zoning act or the bylaws, and thus could not support standing.

To the extent the plaintiffs' three other arguments could

support standing, the judge determined that Cable Matters had

rebutted the presumption that the plaintiffs were "aggrieved"

persons under G. L. c. 40A, § 17, by showing that any harm to

the plaintiffs would be de minimis, and that the plaintiffs had

not presented sufficient evidence of unique harm to establish

standing absent that presumption. For those reasons, the judge

allowed Cable Matters's motion for summary judgment on June 1,

2022. The judge's order was docketed on June 6, 2022, and the

plaintiffs filed a notice of appeal on July 5, 2022.

No judgment was entered on the docket, however, and the

board filed a motion on December 16, 2022, requesting that the

Superior Court judge enter a judgment in favor of the board and

an order for judgment dismissing the action in its entirety. On

December 28, 2022, the board's motion was allowed, and the

judgment of dismissal entered on January 6, 2023. The

plaintiffs then filed an amended and restated notice of appeal

on January 30, 2023.

2. Discussion. Our review of an allowance of a motion for

summary judgment is de novo. Blake v. Hometown Am. Communities,

Inc., 486 Mass. 268, 272 (2020). We must view the record

evidence, and all reasonable inferences that can be drawn

therefrom, in the light most favorable to the nonmoving party,

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here the plaintiffs. Id. Summary judgment is appropriate only

where, viewing the record in that light, there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law. Mass. R. Civ. P. 56 (c), as

amended, 436 Mass. 1404 (2002). In the context of a zoning case

decided at summary judgment, the judge "does not engage in fact

finding," so "we do not give deference to the judge's decision."

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

Mass. 692, 699 (2012), citing Albahari v. Zoning Bd. of Appeals

of Brewster, 76 Mass. App. Ct. 245, 248 (2010).

This case involves the question whether the plaintiffs have

standing to challenge the board's decision to grant a variance

to Cable Matters. General Laws c. 40A, § 17, allows "[a]ny

person aggrieved by a decision of the board of appeals" to

appeal that decision by filing a complaint for judicial review.

For a plaintiff to be considered a "person aggrieved," and thus

have standing, that person must "suffer[] some infringement of

his legal rights." Marashlian v. Zoning Bd. of Appeals of

Newburyport, 421 Mass. 719, 721 (1996). "The right or interest

asserted by a plaintiff claiming aggrievement must be one that

G. L. c. 40A is intended to protect." Kenner v. Zoning Bd. of

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

the plaintiff's injury "must be more than speculative."

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Marashlian, supra, citing Tsagronis v. Board of Appeals of

Wareham, 415 Mass. 329, 335 (1993) (Abrams, J., dissenting).

An abutter to the property is entitled to "a rebuttable

presumption that [he is a] 'person[] aggrieved.'" Marashlian,

421 Mass. at 721. That presumption may be rebutted if "a

defendant challenges the plaintiff's status as an aggrieved

person and offers evidence supporting his or her challenge."

Watros v. Greater Lynn Mental Health & Retardation Ass'n, 421

Mass. 106, 111 (1995). Once the presumption has been rebutted,

"the burden rests with the plaintiff to prove standing, which

requires that the plaintiff '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.'" Standerwick v. Zoning Bd. of Appeals of Andover,

447 Mass. 20, 33 (2006), quoting Barvenik v. Aldermen of Newton,

33 Mass. App. Ct. 129, 132 (1992).

In this case, the plaintiffs are abutters, as their

residence is located directly across the street from the parcels

on which Cable Matters intends to build. However, the Superior

Court judge concluded that Cable Matters had rebutted the

presumption that the plaintiffs were "aggrieved" under the

zoning act. With regard to the plaintiffs' allegation that

construction of the warehouse and office space would cause

excessive noise, the judge questioned whether that temporary

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noise was an interest protected by the zoning act or the bylaws,

and found that even if it were, Cable Matters had rebutted the

presumption by showing that the plaintiffs had no reasonable

expectation of proving a cognizable harm. The plaintiffs also

asserted standing based on excessive noise, fumes, and odors

from the warehouse's post-construction operations, especially

from the delivery trucks. The trial judge concluded that

excessive noise and offensive odors were interests protected by

zoning act and the town bylaws, citing town zoning bylaw § 7-05-

010(G)(2) ("In all zoning districts, no use shall be permitted

which would be offensive because of injurious or noxious noise,

vibration, smoke, gas, fumes, odors, dust, debris, glare,

radiation, or electrical interference, or other objectionable

features, or be hazardous to the town due to fire or explosions

or the creation of traffic hazards, or any other cause"). The

judge found that Cable Matters had rebutted the presumption by

showing that any harm caused by noise, vibration, or concussion,

or by offensive odors from Cable Matters's trucks would be de

minimis, considering the relatively small number of trucks

expected to be used and the amount of noise and fumes already

present in the neighborhood.5 After finding that the presumption

5 The judge also considered the plaintiffs' arguments

regarding unnatural light from Cable Matters's operation and

loss of open space, but held that neither was a protected

interest under the zoning act or the bylaws and thus could not

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had been rebutted, the judge found that the plaintiffs had not

carried their burden to show that they had standing, as they had

not demonstrated that they would be harmed in a way that was

different from the rest of the community, and had merely

speculated about the harm that would be caused, rather than

providing specific factual support.6

We conclude that the judge erred in considering only Cable

Matters's proposed use of the warehouse when determining that

Cable Matters had rebutted the presumption that the plaintiffs

support standing. We do not disturb the judge's conclusions

with regard to these two arguments for standing.

6 The defendants argue that the plaintiffs have no standing

because the interests that the judge concluded were protected by

the town bylaws were not interests protected by the GPOD bylaw.

They cite Murchison v. Zoning Bd. of Appeals of Sherborn, 485

Mass. 209 (2020), in which an abutter claimed that his interest

in neighborhood density was infringed by a neighbor's violation

of the town's dimensional lot width requirement. The Supreme

Judicial Court determined, among other things, that the violated

requirement did not protect the interest in density; rather,

density was addressed by the lot size and setback requirements

of the zoning bylaw, with both of which the proposed

construction complied. Id. at 214.

Here, the motion judge construed the requirement of town

zoning bylaw § 7-05-010(G)(2), quoted in the text, supra, to be

applicable to decisions to grant a variance from the GPOD. That

bylaw states that it is applicable to "all zoning districts," of

which the industrial district, in which the proposed warehouse

will be built, is one. See also G. L. c. 40A, § 10 (variance

may be granted only where "relief may be granted without

substantial detriment to the public good and without nullifying

or substantially derogating from the intent or purpose of [the

applicable zoning] ordinance or by-law"). "The traditional

canons of statutory construction apply to zoning bylaws."

Doherty v. Planning Bd. of Scituate, 467 Mass. 560, 567 (2014).

We see no error in the judge's construction.

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were aggrieved. In determining that the noise and odors would

be de minimis, the judge repeatedly emphasized Cable Matters's

assertions that it would "create minimal truck traffic,"

repeating its claims that such traffic would consist of only

"one tractor trailer every two or three months and three UPS or

U.S. Postal Service vans per day, all during weekday business

hours."

Rather than solely consider this unusually light use of

such an enormous warehouse, the judge should have considered the

uses to which an ordinary 20,000 square foot warehouse is put,

which of course this proposed warehouse one day may be. See

Allegaert v. Harbor View Hotel Owner LLC, 100 Mass. App. Ct.

483, 490 (2021) (special permit allowing construction of new bar

"implicitly allowed" its ordinary use, "service of food and

beverages"). In its motion for summary judgment, Cable Matters

did not submit sufficient evidence about ordinary warehouse

usage, and what impact that would have on the plaintiffs, to

rebut the presumption that the plaintiffs were "aggrieved."

3. Conclusion. The judgment is vacated, and the matter is

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remanded to the Superior Court for further proceedings

consistent with this memorandum and order.

So ordered.

By the Court (Rubin,

Ditkoff & Grant, JJ.7),

Clerk

Entered: September 25, 2024.

7 The panelists are listed in order of seniority.

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