CEA BRIMBAL LLC v. 143 BRIMBAL AVENUE, LLC, & Others.

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-367

CEA BRIMBAL LLC 1

vs.

143 BRIMBAL AVENUE, LLC, & others. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendant 143 Brimbal Avenue, LLC, was formed to purchase a

1.25-acre parcel at 143 Brimbal Ave. in Beverly so that an

affiliated entity could operate a rug store at that property

(rug store property). The zoning board of appeals of Beverly

(board) issued a special permit for the project, which involved

1 The case was originally brought by 133 Brimbal LLC. While the

appeal was pending, 133 Brimbal LLC sold its property to CEA

Brimbal LLC. We disagree with the defendants that this mooted

the controversy, because nothing suggests that the standing

argument that is at issue turns on the identity of the owner of

the 133 Brimbal property. We therefore have denied the

defendants' motion to dismiss the appeal as moot and allowed 133

Brimbal LLC's motion to substitute CEA Brimbal LLC as the

appellant. For simplicity, we refer to 133 Brimbal LLC and CEA

Brimbal LLC interchangeably as the plaintiff.

2 Joel Margolis, Victoria Caldwell, David Battistelli, Pamela

Gougian, James Levasseur, Kevin Andrews, Stefano Basso, and

Margaret O'Brien, as they are the members of the zoning board of

appeals of Beverly.

both a change in use and the expansion of the existing building

there. The plaintiff is the owner of the parcel that directly

abuts the rug store property to the south. In 2021, the

plaintiff brought a Land Court action to appeal the issuance of

the special permit. Following trial, the judge ruled that the

plaintiff lacked standing to maintain the action. On the

plaintiff's appeal, we affirm.

The standing argument on which the plaintiff sought to rely

focused on the adequacy of the on-site parking that would be

available at the rug store property. It is undisputed that

there is no available off-site public parking in the area that

could accommodate the rug store (either on public streets or at

off-site parking lots open to the public). As a result, the

plaintiff argues, if the on-site parking available at the rug

store property is inadequate, those patronizing that business

who cannot find parking there will park illegally on the

plaintiff's adjacent property, which would constitute a trespass

and deprive the plaintiff (and its tenants, their customers, and

others) of being able to park on its land. Thus, the

plaintiff's standing hinges on whether such a spillover effect

will occur. Passing over potential reasons to doubt whether

those who could not find parking at the rug store property would

actually park illegally at the plaintiff's property down the

2

street, 3 we turn to the central premise of the plaintiff's

argument: that the parking provided at the rug store property

would be inadequate.

It was uncontested that there currently are eighty-three

marked parking spaces at the rug store property. As part of the

development plans that the board approved, the rug store will

reconfigure parking so as to provide seventy-four marked spaces.

The reconfiguration of the parking will serve to move parking

spaces away from the boundary between the two properties. The

key factual question in dispute is whether the seventy-four

parking spaces available at the rug store property will be

sufficient for the store's parking needs.

The business proposed for the rug store property is a

hybrid one that would include retail, storage, fabrication, and

office space components. Based on the extensive evidence that

the defendant provided, including expert testimony, the judge

found that the peak daily parking demand for the combined uses

would be only twenty-nine spaces, that is, far less than the

seventy-four spaces that in fact will be provided. The

3 Because of the plaintiff's installation of a so-called "Jersey

barrier," there is no direct access between the parking areas on

the two properties. To access the parking area of 133 Brimbal

Ave., a driver would have to leave 143 Brimbal Ave., drive down

the street some eighty feet and then turn into the separate

parking area there. Then, after parking, the person would have

to either crawl over the Jersey barrier or retrace their path

and walk down Brimbal Avenue.

3

plaintiff provided no contrary evidence other than its

principal's lay opinion, which the judge found "entirely

speculative." The judge ultimately found that the "Plaintiff

hasn't offered sufficient proof that [the rug store's] proposed

operations at 143 Brimbal will result in any impact on parking

at 133 Brimbal, let alone a harmful impact."

"Standing essentially becomes a question of fact for the

judge." Kenner v. Zoning Bd. Of Appeals of Chatham, 459 Mass.

115, 119 (2011). Where, as here, a judge -- after trial -- has

found standing absent on the ground that the proposed

development will not have more than a de minimis impact on the

plaintiff, appellate courts must affirm absent a demonstration

that the findings are clearly erroneous. Id. at 124. On this

record, the plaintiff has not shown any clear error in the

judge's careful findings. The plaintiff's arguments that it is

plain that the rug store grossly underestimated its parking

needs are simply unpersuasive. 4

4 The plaintiff seeks to paint the rug store as having

manipulated its evaluation of parking demand as part of a self-

serving effort to deny plaintiff standing. We note that in

light of the fact that there is no available public parking in

the area and of the fact that the plaintiff has it in its power

to prevent unauthorized parking on its land, the rug store has

an obvious incentive to see that it can provide adequate on-site

parking.

4

Unable to succeed in challenging the judge's factual

findings, the plaintiff seeks to maintain that the judge

committed legal errors. It argues that, as a matter of law, the

judge should not have counted twenty-five spaces as being

available because those spaces violated applicable setback

requirements (that is, the spaces were too close to the property

boundaries). Putting aside that this still would leave the rug

store with forty-nine spaces, almost twice its projected peak

daily demand, the plaintiff's argument conflates the standing

issue -- whether there will be an adequate number of parking

spaces in fact -- with the merits, whether the development and

special permit comply with the zoning ordinance. 5

The plaintiff also argues, especially in its reply brief,

that the judge applied too strict a test for standing.

According to it, a plaintiff need show only a "plausible" claim

that it could be harmed, rather than specific proof that it more

probably than not will be harmed. In support of this argument,

5 The plaintiff makes no argument that it will be harmed by

having the rug store parking placed too close to the property

boundary. This is not surprising given that the rug store's

reconfiguration moved parking away from that boundary and given

that it appears that the plaintiff allows parking on its own

property right next to that boundary We additionally note that

the defendants argue that the board had authority, under the

special permit provisions, to allow parking that does not

conform to setback requirements, that is, without the need for a

variance. We need not resolve that issue.

5

the plaintiff cites to cases such as Butler v. City of Waltham,

63 Mass. App. Ct. 435, 441-442 (2005), in which this court

stated that to establish standing -- which we characterized as

"the gateway through which one must pass en route to an inquiry

on the merits" -- a plaintiff is "not required to persuade the

judge that his or her claims of particularized injury are, more

likely than not, true." See Marashlian v. Zoning Bd. Of Appeals

of Newburyport, 421 Mass. 719, 721 (1996) (cautioning that

review of whether plaintiff has standing "does not require that

the factfinder ultimately find a plaintiff's allegations

meritorious"). Whatever the force of that argument might be in

other settings, it gains little traction here where the

plaintiff presented such a slim case as to how the issuance of

the special permit would cause it harm. 6

6 There may be something of an unresolved tension in the case law

between cases that treat standing as a "gateway" issue where

merely "plausible" allegations of particularized harm are

sufficient, see Butler, 63 Mass. App. Ct. at 441, and cases that

require a plaintiff to make a more rigorous demonstration of how

it likely will be harmed (thereby encouraging judges, as here,

to hold full-blown trials on standing), see Kenner, 459 Mass. at

119. We need not address that issue further, however, because

the plaintiff's claim to standing fails under either view.

6

Discerning no error in the judge's finding that the

plaintiff lacked standing, we affirm the judgment. 7

So ordered.

By the Court (Milkey,

Massing & Neyman, JJ. 8),

Assistant Clerk

Entered: March 29, 2024.

7 Defendant 143 Brimbal Avenue, LLC has requested that we award

it reasonable appellate attorney's fees and double costs

pursuant to Mass. R. App. P. 25, as appearing in 481 Mass. 1654

2019. Although we agree that the plaintiff's appellate

arguments are weak, we do not find them frivolous. The request

for sanctions is denied.

8 The panelists are listed in order of seniority.

7