No. 99-2464.Commonwealth of Massachusetts Superior Court WORCESTER, ss.
November 29, 2000
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARYJUDGMENT
DANIEL F. TOOMEY, JUSTICE.
This is an action for judicial review, pursuant to G.L.c. 40A, § 17, of the grant of a residential flexible development special permit to the Town of Grafton (“the Town”) by the Grafton Planning Board (“the Board”) for land located on Adams Road in Grafton. The case is now before the court on defendants’ motion for summary judgment. Defendants argue that plaintiff Pribhu Hingorani, Trustee of the Adams Road Trust (“Hingorani”), lacks standing to bring this suit because he is not an “aggrieved person” as defined by G.L.c. 40A, § 17. For the following reasons, defendants’ motion is DENIED.
BACKGROUND
On or about November 1, 1999, the Town submitted an application to the Board for a special permit to build a flexible development on approximately a 125 acre parcel on Adams Road in Grafton. The parcel is owned by a Mr. Hennessey and the Town has exercised an option to purchase the property. The Board held a public hearing on the application on November 29, 1999 and approved the application by decision filed with the Town Clerk on or about December 3, 1999.
Hingorani owns an approximately 65 acre parcel on Adams Road; his property abuts the 125 acre parcel the Town is seeking to develop. Hingorani intends to develop fifty single family homes on his parcel. He has filed a preliminary subdivision plan and applications for a flexible special permit and a floodplain special permit for the project. Those submissions are under review by the town planner.
Adams Road provides the only access to Hingorani’s property at this time. Without a second access road, Hingorani can develop only five lots on his property.
Hingorani alleges that there were numerous irregularities with respect to the granting of the special permit to the Town. He complains that the Town was not required to abide by the rules and regulations governing subdivision development in Grafton as are other developers. Specifically, he contends that, pursuant to § 4.1.3.6 of the Design Requirements of the Grafton Rules and Regulations Governing the Subdivision of Land[1] , the Town’s proposed subdivision must provide another access road to Hingorani’s property and that the access requirement was not satisfied by the Town’s development plans.
DISCUSSION
Summary judgment will be granted where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983);Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that it is entitled to judgment in its favor.Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, that party may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case or by “demonstrating that proof of that element is unlikely at trial.” Flesner v. TechnicalCommunications Corp., 410 Mass. 805, 809 (1991). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat the motion for summary judgment.” Pederson, 404 Mass. at 17. The opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Applying those principles to the motion at bar, we find that defendants have not demonstrated the absence of a triable issue with respect to Hingorani’s standing to sue. Hence, their motion must fail.
The court has jurisdiction to consider a zoning appeal only if it has been brought by a person with standing, that is, by a person who has been aggrieved by a permit granting authority’s decision. G.L.c. 40A, § 17. A plaintiff is a “person aggrieved” if he suffers some infringement of his legal rights. Circle Lounge Grille v. Board ofAppeal of Boston, 324 Mass. 427, 430 (1949). The injury must be more than speculative, Tsangronis v. Board of Appeals of Wareham, 415 Mass. 329, 335
(1993), but the term “person aggrieved” should not be read narrowly.Marotta v. Board Appeals of Revere, 326 Mass. 199, 204 (1957).
Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption that they are “persons aggrieved.” Watros v.Greater Lynn Mental Health Retardation Ass’n, Inc., 421 Mass. 106, 111
(1995). If standing is challenged, the jurisdictional question is decided on “all the evidence with no benefit to the plaintiff from the presumption.” Id.; see also Barnevik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992).
A determination that plaintiff appears to have standing based on “all the evidence does not require that the factfinder ultimately find the plaintiff’s [substantive] allegations meritorious.” Marashlian v. ZoningBoard of Appeals of Newburyport, 421 Mass. 719, 721 (1996). The plaintiff must, however, put forth “credible evidence” to substantiate his substantive allegations. Id. Standing then becomes a question of fact for the trial judge. Id.; see also Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372, 377 (1988). “Credible evidence,” for standing purposes, is a specific showing that the plaintiff’s injury is special and different from the concerns of the rest of the community. Id. at 723. The plaintiff must show that his legal rights have been, or likely will be, infringed or his property interests adversely affected. Barnevik, 33 Mass. App. Ct. at 132. Plaintiff must establish his injury by direct facts and not by speculative personal opinion. Id.
In this case, Hingorani is an abutter to the property at issue. As such, he enjoys the rebuttable presumption that he is a “person aggrieved” under G.L.c. 40A, § 17. Because defendants’ motion for summary judgment has challenged Hingorani’s standing, this court must examine all the evidence to determine whether he has put forth credible evidence, by direct facts and not speculative opinion, sufficient to show that his injury is special and different from that of the rest of the community. See Marashlian, 421 Mass. at 723. That mandated scrutiny of “all the evidence” is convincing that Hingorani has provided direct evidence that his injury is distinctive, thus establishing that he has standing as a “person aggrieved” to maintain this G.L.c. 40A, § 17
action.
Hingorani contends that the Town’s application for development was treated differently than those of other developers. He asserts that the rules and regulations governing subdivision development were not applied evenhandedly to the Town. Specifically, he alleges that, if the Town were required, as are other developers, to satisfy section 4.1.3.6 of the Design Requirements of the Grafton Rules and Regulations Governing the Subdivision of Land, the Board would have required that the Town create a second access road to his property. In his deposition, Hingorani testified that he intends to develop fifty single family homes on his parcel. He averred that he has filed plans and applied for special permits for the project and that those offerings are being reviewed by the town planner. He opined that, without the second access road, he can develop only five lots on his property.
Although Hingorani’s allegations may not ultimately prove to be meritorious, he need not, to demonstrate standing, deliver such proof. See id. at 721, 723. He will defeat summary judgment on the standing question if he persuades this court that there is a genuine issue of material fact as to his standing. At bar, this court is indeed persuaded that Hingorani’s deposition testimony constitutes direct evidence suggestive of a genuine issue of material fact that his property interests will likely be adversely affected by the Town’s proposed development and that his injury is different from that which might be visited upon the rest of the community. The court finds, therefore, that Hingorani has demonstrated a true question of fact with respect to his standing to bring the instant action.
ORDER
For the foregoing reasons, defendants’ motion for summary judgment isDENIED.
___________________________ Daniel F. Toomey Justice of the Superior Court
November 29, 2000