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-1019 TROPICAL FAY'S - II, LLC, & another1 vs. ZONING BOARD OF APPEAL OF BOSTON & another.2 MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The plaintiffs, Tropical Fay's - II, LLC, and Tropical Foods International, Inc., appealed the grant of a variance by the Board of Appeal of Boston (board) to the defendants, Madison Trinity 2085 Development, LLC, with respect to the height and floor area ratio of a housing development in Boston. A judge of the Land Court dismissed the plaintiffs' variance appeal, concluding that the plaintiffs lacked standing. We affirm.

Discussion. The facts of the underlying dispute and the decision of the Land Court judge are well known to the parties and will be repeated here only as necessary.

The burden of proof of standing always remains on the plaintiff, even when the burden of production shifts. See 81 Spooner Rd., 461 Mass. at 701. "The 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" (citation and quotations omitted).

Picard, 474 Mass. at 573-574. See Wooton v. Crayton, 66 Mass. App. Ct. 187, 190 n.6 (2006) (in motion where defendant makes "supported, factual challenge to subject matter jurisdiction" under Mass. R. Civ. P. 12 [b] [1], "the plaintiff bears the burden of proving jurisdictional facts to support [their] claims"). At this point, "[s]tanding essentially becomes a question of fact for a judge," and the "judge's ultimate findings on this issue will not be overturned unless shown to be clearly erroneous." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 119 (2011).

Here, the judge determined that plaintiffs enjoyed a presumption of standing as an abutter, which the defendant does not dispute. See Murchison v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209, 213 (2020) (abutters have presumptive standing). The judge further determined that the defendants had rebutted the presumption,3 and that the plaintiffs lacked standing, because "the plaintiffs have not produced evidence of

a particularized harm and have only articulated speculative allegations." To establish standing, the plaintiffs produced an expert report4 that sought to demonstrate the harms they alleged the variance would cause through overburdening their allocated parking spaces and increased traffic. The report explained that, because of the increased number of units in the defendant's housing development, there will be residents without an allocated parking spot who seek parking along the curbs and in the general area. Some of these residents, the report predicted, will park in the plaintiffs' allocated spots, "mak[ing] it more difficult for [the plaintiffs' customers] to find a free parking space" and "prompt[ing] some [customers] to take their business elsewhere." The judge concluded that the plaintiff's contention that the variance will interfere with their allocated parking spaces was speculative. Regarding the increased traffic, the judge concluded that the plaintiffs, through their expert report, "have failed to put forth any credible evidence that any increase in traffic attributable to the project will cause them

any injury in the use of [their] property, such as a decrease in a level of service of a nearby intersection that will impede access to their site." Without this evidence, the judge determined, "general allegations of increased traffic are not cognizable to establish standing." The plaintiffs argue that the judge's conclusion that the plaintiffs' parking aggrievement is speculative is clear error because it is inconsistent with the judge's finding that "the plaintiffs have provided expert opinion on the impact the project would have on the availability of parking." This argument is unpersuasive. The judge was not obligated to credit the conclusion of the plaintiff's expert report, which determined that an unspecified number of housing development residents would sometimes decide to park in the plaintiff's lot during times where the parking lot is already full, and, that this incursion would materially impact the plaintiffs. See Daniels v. Board of Registration in Med., 418 Mass. 380, 392 (1994) ("[t]he law should not, and does not, give the opinions of experts on either side of . . . [a]n issue the benefit of conclusiveness"). See also Butler v. Waltham, 63 Mass. App. Ct. 435, 441 (2005) ("Conjecture, personal opinion, and hypothesis are . . . insufficient" to establish standing). The plaintiffs' claim that the housing development's residents will infringe on their parking lot is indeed speculative given the proximity to

public transit and the housing development's plan to incentivize residents to utilize only resident-assigned parking spots or public street parking. See Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493-494 (1989) (parking problems "at best speculative" where project close to transit and "special conditions annexed to the permits in order to discourage the use of automobiles"). Any material impact to the plaintiffs is also speculative as the expert report demonstrated that for twenty hours of an average day, the plaintiff's parking lot is below fifty percent utilization, and that at no point is the lot utilized above seventy percent of its capacity.5 Further, the plaintiffs maintain the right to tow unauthorized vehicles that are parked in their lot. See id. at 493-494 (parking aggrievement unsubstantiated in part where "plaintiffs have legal recourse if [unauthorized] vehicles park on their streets").

For similar reasons, the judge did not commit clear error in finding that the plaintiff's alleged injury as to traffic was speculative. There was no evidence, either from the plaintiffs'

expert report or elsewhere in the record, that a variance to allow an increase in housing development residents would result in a greater burden on the access to or egress from the plaintiffs' parking lot.6 Judgment affirmed.

By the Court (Ditkoff, Singh & Smyth, JJ.7),

Clerk

Entered: July 29, 2025.