Watros v. Greater Lynn Mental Health & Retardation Ass'n
Watros v. Greater Lynn Mental Health & Retardation Ass'n
Opinion of the Court
Emanuel and Barbara Miliaras own property in Winchester at 12-14 Mount Pleasant Street, in a neighborhood zoned for single-family dwellings. On the
In July, 1991, the Miliarases leased the barn to the Greater Lynn Mental Health and Retardation Association, Inc. (GLMHRA), a private, nonprofit corporation established under G. L. c. 180, which engages in educational activities, for a five-year term at a nominal rent. GLMHRA planned to renovate the barn for use as a group home for three mentally retarded autistic men.
GLMHRA petitioned the Winchester board of appeal for a special permit to use the barn as a group home, as required by § 3.45 of the zoning by-law. After appropriate notice and a public hearing, attended by numerous abutters, neighbors, and concerned citizens who spoke with respect to the petition, the board granted the special permit in early January, 1992. In its written decision, the board acknowledged that G. L. c. 40A, § 3 (the so-called “Dover amendment,” inserted by St. 1975, c. 808, § 3), entitled GLMHRA to use the barn as of right for the conceded educational purpose of a group home but concluded that a special permit was nonetheless required because of the proposed change in the nonconforming structure. Cf. Campbell v. City Council of Lynn, 415 Mass. 772, 111 n.6 (1993). The board recognized that, in order to grant the permit, it had to find, pursuant to § 3.45, that the change in the nonconforming structure (the
The board ultimately made all of these required by-law determinations in GLMHRA’s favor. In granting the special permit, the board particularly relied on its findings that satisfactory arrangements had been made by GLMHRA for ingress to and egress from the property and the proposed structure, off-street parking, refuse collection and disposal, screening and buffering, signage, and open space; that the number of vehicles allowed to park on site would not increase from the previous limit of nine; and that there was general compatibility of the project with adjacent properties and other property in the district, particularly because the neighborhood already contained numerous similar barns or carriage houses and many nonconforming structures. Additionally, the board found, in support of the permit, that the proposed barn renovations would not alter the “footprint” of the structure; that there would be no external alterations to the building except for new stairs on the front and side; that only limited site work was to be done, including construction of a retaining wall and stone rip-rap on two sides of an existing parking area, erection of a six-foot high fence along the rear and side lot lines, planting of six ten-foot evergreen trees along the rear lot line to screen the building and the parking area, and some walkways on the front and side of the building; that the parking area would remain unpaved; that there would be no external dumpster; no signs would be posted; and that no town officers or boards had commented adversely on the project.
The board attached conditions to the permit, as authorized under G. L. c. 40A, § 3, the most significant being that no
The Watroses, alleging ownership of property at 10 Mount Pleasant Street that abutted the Miliarases’ lot, appealed the board’s decision by unverified complaint against the Miliarases, the board, and GLMHRA, filed in the Superior Court pursuant to G. L. c. 40A, § 17, in mid-January, 1992.
Timely answers of the defendants denied all of the complaint’s operative averments. Additionally, GLMHRA’s answer denied the Watroses’ standing and asserted as an affirmative defense that the Watroses were not persons aggrieved with sufficient standing to give the court jurisdiction over the complaint. On June 10, 1992, the board, stating that no genuine issue existed as to any material fact, moved for summary judgment on the basis of the pleadings, affidavits, the board’s special permit decision, all documents and
Almost a week later, GLMHRA also filed a “motion to dismiss” the action “for lack of jurisdiction” and failure of the complaint “to meet the [standing] requirements of [G. L. c. 40A, § 17].” In support of the motion, GLMHRA relied upon “the record of [the] proceedings and pleadings herein.” After a consolidated hearing on all of the outstanding motions on June 22, 1992, at which the judge acknowledged that “the material facts are undisputed” and only issues of law remained, the motion judge denied GLMHRA’s “motion to dismiss” and the defense motions for summary judgment and allowed the Watroses’ cross motion for summary judgment on the ground that the board had exceeded its authority in granting the special permit. GLMHRA has appealed on the ground, among others, that the judge erroneously decided the issue of the Watroses’ standing.
We agree.
Although erroneously labelled a “motion to dismiss,” GLMHRA’s motion challenging the Watroses’ standing expressly relied upon the board’s findings and decision as well as the entire record before the board, which was already before the court on the cross motions for summary judgment. Having presented matters outside the pleadings, GLMHRA should have denominated its motion as one for summary judgment under Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974). See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974).
The judge, however, proceeded to address GLMHRA’s “motion to dismiss” entirely in the abstract, as if the only information before her was the Watroses’ unverified complaint and as if all the conclusory allegations therein, including favorable inferences, were true under the generous and indulgent criteria for determining rule 12(b)(6) motions announced by such cases as Nader v. Citron, 372 Mass. 96, 98 (1977). On that basis, the judge declared that “the Watroses have asserted facts from which it can be inferred that they will incur tangible harm as a result of the special permit.” The judge specifically relied on the Watroses’ erroneous complaint allegations that under the permit the proposed use would result in more people on the locus and that there would be additional parking, as well as her own conclusions
Treating GLMHRA’s challenge to the Watroses’ standing and the court’s jurisdiction under G. L. c. 40A, § 17, as if it were a disembodied and unsupported motion to dismiss not only was a formality that made little sense in light of the procedural actualities facing the court; it was also erroneous. When matters outside the pleadings were explicitly presented to and not excluded (indeed, were accepted) by the judge, the matter should have been handled as a motion for summary judgment, so that the judge could look beyond the unverified pleading and apply dispositive legal principles to the undisputed facts and avoid unnecessary further proceedings. See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974) (in such a procedural posture “the motion [to dismiss] shall be treated as one for summary judgment” [emphasis added]); Cousineau v. Laramee, 388 Mass. 859, 860 n.2 (1983); Davidson v. Commonwealth, 8 Mass. App. Ct. 541, 542 n.2 (1979); Carter v. Stanton, 405 U.S. 669, 671 (1972); Gibb v. Scott, 958 F.2d 814, 816 (1st Cir. 1992).
In the instant circumstances, there could be no issue of prejudice or inadequate notice to the Watroses resulting from such a mandatory “conversion” of a motion to dismiss to a motion for summary judgment. GLMHRA’s motion clearly stated its reliance on the entire record, as well as the pleadings, as the basis for its arguments against the Watroses’ standing. All the parties, including the Watroses, had either presented or cited to that record before the board and had an opportunity to be heard on all issues. Compare Stop & Shop Cos. v. Fisher, 387 Mass. 889, 892 (1983) (party relying on extra-pleading material on a motion to dismiss
This court has recently outlined the standards for determining whether abutting plaintiffs have met that burden:
“ ‘Aggrieved person’ status is a jurisdictional prerequisite. Unless brought by a municipal officer or board, a court has jurisdiction to consider a zoning appeal only if it is taken by an aggrieved person. Although abutters and abutters to abutters enjoy a presumption of aggrieved person status, the presumption is rebuttable. Once a defendant in a § 17 appeal challenges the plaintiffs standing and offers evidence to support the challenge — as the defendants did here — the jurisdictional issue is to be decided on the basis of the evidence with no benefit to the plaintiff from the presumption. The plaintiff then has the burden of proof on the issue of standing. Satisfaction of that burden requires proof that the plaintiff is one of the limited class of individuals who are entitled to challenge a zoning board’s exercise of discretion.
“To qualify for that limited class, a plaintiff must 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. He must show that his legal rights have been, or likely will*665 be, infringed or his property interests adversely affected. Subjective and unspecific fears about the possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close neighborhood feeling, or the loss of open or natural space are all considered insufficient bases for aggrievement under Massachusetts law.
“Even when positing legitimate zoning-related concerns, including possible vehicular traffic increases, anticipated parking problems, and the potential for litter, a plaintiff must nonetheless offer more than conjecture and hypothesis. He must provide specific evidence demonstrating a reasonable likelihood that the granting of a special permit will result, if not in a diminution in the value of his property, at least in his property or legal rights being more adversely affected by the activity authorized by the permit than (a) they are by present uses and activities or (b) they would be as a result of the uses and activities permitted as of right on the defendant’s locus. Otherwise, a would-be plaintiff lacks the requisite standing and cannot maintain an appeal under G. L. c. 40A, § 17, even if his property abuts or is very near the property subject to the permit.” (Emphasis added).
Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129, 131-133 (1992) (footnotes omitted). These principles have been reiterated, in a summary judgment context, in Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619, 621-622 (1993) (“the challenged plaintiff [opposing summary judgment] . . . must come forward with ‘specific facts’ to support the assertion of status as an aggrieved person” demonstrating special injury to his own private rights or interests); Marashlian v. Zoning Bd. of Appeals of Newburyport, post 931, 933 (1994). See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-562 (1992) (standing at the summary judgment stage requires that the plaintiff can no longer rest on the mere allegations of the complaint but must set forth, by affidavit or other evidence,
Under these controlling standards, the judge should have allowed GLMHRA’s motion attacking the Watroses’ standing. Their presumptive standing as abutters receded and their burden of going forward on standing sprang up when their unsworn complaint assertions as to aggrievement were directly challenged by the denials and affirmative defenses in the defendants’ answers. See Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624, 626 (1977). They submitted no affidavits or other material to establish the requisite adversity of impact to their peculiar rights. The unverified allegations of their complaint were entitled to no consideration in evaluating the matter, see Godbout v. Cousens, 396 Mass. 254, 262-263 (1985), and provided no specific facts as to the impact of the proposed project on them in any event. See 660 and note 4, above. The judge made no findings with respect to their standing but erroneously relied solely on those naked allegations. The Watroses point to nothing in the record before the motion judge which even suggests, let alone establishes, that the permitted project will diminish or adversely affect their property or legal rights, or that any effect on them would be more adverse than it would be as a result of continuation of the present use of the Miliarases’ property or as a result of additional uses and activities permitted as of right.
On the contrary, to the extent the record discloses relevant and uncontradicted facts, derived from the board’s findings, they militate against the Watroses’ standing, since they indicate no increase in parking, traffic, or permitted persons resulting from the permitted use on the Miliarases’ property, nor any physical changes incompatible with the existing character of the area. Finally, “[e]ven assuming that the anticipated . . . increases [in parking, traffic, and population] . . . will result, there [was] no specific showing [by the Watroses] that [they] will either be injured [thereby] or that such an injury would be special and different from that which others throughout the zone would experience ....
Accordingly, the judgments denying GLMHRA’s motion to dismiss and granting summary judgment in favor of the Watroses are reversed; and a new judgment is to be entered dismissing the Watroses’ complaint.
So ordered.
One of the original three residents was to have been the Miliarases’ son. That individual, however, appears to have died sometime prior to the commencement of this litigation.
The Watroses did not allege any facts particularizing their abutting status, such as their proximity to the rear lot line; or their ability to see the barn or the parking area or the two-family residence or anything else on the Miliaras lot; or their susceptibility to noise from the premises; or the impact on them of vehicular traffic in and out of the Miliaras property; or the likely effect on them of any spill-over off-site parking.
The Watroses erroneously asserted that the decision authorized residence by “a minimum of four adults.” See above and note 8 below.
We do so, with respect to the issue of standing under G. L. c. 40A, § 17, on grounds different from that argued by GLMHRA but squarely presented by both the record before the motion judge and that same record before this court. See Mass.R.Civ.P. 12(h)(3), 365 Mass. 757 (1974); Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981); Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11 (1989); Flynn v. Contributory Retirement Appeal Bd., 17 Mass. App. Ct. 668, 670 (1984).
It is, of course, the substance of a motion and not its technical name or label that determines its nature and legal effect. Smith & Zobel, Rules Practice § 7.11 (1974); 2A Moore’s Federal Practice § 7.05 (1994); 5 Wright & Miller, Federal Practice & Procedure § 1196 (1990).
Not only was the Watroses’ complaint wrong in alleging that the special permit allowed a minimum of four persons to live in the group home rather than the board-mandated maximum of three; but the judge also erroneously assumed that the three additional persons represented an increase in the number who could live on the premises as of right. Under the zoning by-law, up to four unrelated persons could reside on the property, along with the two families already in residence.
Reference
- Full Case Name
- Gary Watros & another v. Greater Lynn Mental Health And Retardation Association, Inc., & others
- Cited By
- 4 cases
- Status
- Published