PORTER v. BOARD OF APPEAL OF BOSTON (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Eric Porter, brought the underlying action in the Superior Court challenging a decision of the Boston Board of Appeal (board) which allowed the defendant, Fung & Hsu Realty Associates, LLC,³ to build an addition on its single-family residence, converting it to a two-family residence. Following a jury-waived trial, a Superior Court judge dismissed the complaint concluding, among other things, that Porter lacked standing to challenge the board's decision. On appeal, Porter claims error in that decision. We affirm.

Background. We summarize the judge's findings of fact. In 1998, Porter purchased a 5,094 square foot two-family residence at 80 Linden Street in Allston. Porter lives in one unit and rents the other unit to six unrelated tenants. There are four parking spaces on the property. The judge found that, “[a]ccording to the [p]laintiff, car ownership has decreased in the neighborhood.”

In 2014, the defendant purchased the property across the street from Porter; a 5,460 square foot, three-story, single-family residence located at 85 Linden Street. In 2017, the defendant proposed a $525,000 addition to the rear of the property, consisting of a three-car garage on the ground level, four bedrooms on the second floor, and a living room, kitchen, and dining room combination on the third floor. It was the defendant's intention to make the addition a separate living space for the mother of the defendant's manager.

Zoning regulations in the neighborhood permitted one, two, and three-family residences. However, the defendant's proposed addition required four zoning variances from the terms of the Boston Zoning Code: a floor area ratio variance; a usable open space variance; and variances for the side and rear yards. The defendant's application for those variances was approved by the board after a public hearing on June 27, 2017. In a written decision, the board concluded that “this proposal presents a reasonable use of the property that is modest in scope and consistent in design and context with the surrounding neighborhood.”

On August 17, 2017, Porter filed a complaint in the Superior Court appealing the decision of the board. The complaint alleged that the defendant's proposed addition would contribute to overcrowding in the neighborhood and increase traffic. At trial, Porter testified that the proposed addition would increase the demand for street parking, increase density in the neighborhood, and decrease the marketability of his property. The defendant countered with testimony from the project's architect, that the addition would not be visible from the street and would constitute a better use of the property. In addition, the defendant's traffic engineer testified that the project would not have a substantial or significant impact on traffic and would not increase congestion in the area. The judge explicitly credited the testimony of the defendant's expert witnesses. In a comprehensive written decision, the judge concluded that Porter lacked standing to challenge the variances because he failed to demonstrate “that the [board's] decision will cause tangible harm that is personal to him or that his traffic and parking concerns are different from those of the general community.”

Discussion. The plaintiff's action in the Superior Court was filed pursuant to the Boston zoning enabling act, St. 1956, c. 665, § 11, as amended through St. 1993, c. 461, § 5 (the enabling act). In cases brought under the enabling act, we are guided by decisions under the zoning act, G. L. c. 40A, § 17. See 311 West Broadway LLC v. Board of Appeal of Boston, 90 Mass. App. Ct. 68, 73 (2016). “Under the Zoning Act, G. L. c. 40A, 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). To be aggrieved, the plaintiff “must assert a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest” (quotation and citation omitted), Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 120 (2011), that “is special and different from the injury the action will cause the community at large.” Butler v. Waltham, 63 Mass. App. Ct. 435, 440 (2005).

“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), quoting 81 Spooner Rd., LLC, supra. See G. L. c. 40A, § 11 (“parties in interest” include “abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner”). However, when standing is challenged, as it was here, the question of aggrievement is one of fact for the trial judge, to be decided on all the evidence. Picard, 474 Mass. at 573-574. See also Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). We do not disturb the judge's factual findings unless they are clearly erroneous. Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974).

The judge found that any increase in parking from the project would be “de minimus” compared to the parking needs of Porter's six tenants. The project will not cause a physical loss of public parking spaces. Compare Marashlian, supra. Porter's testimony about his or his tenants’ use of on street parking was vague and he testified that car ownership in the neighborhood had decreased. The judge further found Porter's contentions regarding increased traffic and decreased property values to be vague and unsupported by anything other than Porter's personal opinion. For those reasons the judge found that Porter had failed to meet his burden to establish standing. We discern no error in this conclusion. First, even if the proposed addition resulted in an increased demand for parking on Linden Street, there was no evidence of “a harm specific to [Porter's] property.” Schiffenhaus v. Kline, 79 Mass. App. Ct. 600, 603 (2011). Second, Porter's unsubstantiated personal opinions were not sufficient to establish aggrievement under G. L. c. 40A. Picard, 474 Mass. at 575; Butler, 63 Mass. App. Ct. at 441. Given that “ ‘[a]ggrieved person’ status is a jurisdictional prerequisite” to a zoning appeal, Porter's complaint was properly dismissed for lack of standing. See Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992).⁴

The defendant has requested an award of attorney's fees and costs, arguing that Porter's appeal is frivolous. See Mass. R. A. P. 16 (a) (10), as appearing in 481 Mass. 1628 (2019). We decline that request.

Judgment affirmed.

FOOTNOTES

3.   Fung & Hsu Realty Associates, LLC, is the only defendant that has filed a brief in this appeal.

4.   Because we conclude that the complaint was properly dismissed for lack of standing, we need not address Porter's remaining arguments, except to say that we see no abuse of discretion in the judge's allowance of the defendant's request for an appeal bond in the amount of $25,000. See Feldman v. Board of Appeal of Boston, 29 Mass. App. Ct. 296, 298 (1990) (appeal bond a matter of judicial discretion).