Pobeda RT II, LLC v. Zoning Board of Appeals of Watertown

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22-P-1154 Appeals Court

POBEDA RT II, LLC vs. ZONING BOARD OF APPEALS OF WATERTOWN &
another.1

No. 22-P-1154.

Middlesex. September 13, 2023. - May 31, 2024.

Present: Green, C.J., Desmond, & Hodgens, JJ.

Zoning, Board of appeals: decision, Judicial review, Special
permit, Person aggrieved. Practice, Civil, Zoning appeal,
Standing, Summary judgment. Value.

Civil action commenced in the Superior Court Department on
January 11, 2021.

The case was heard by Cathleen E. Campbell, J., on a motion
for summary judgment.

Michael W. Ford for the plaintiff.
Mark Bobrowski for Cresset/WS Venture LLC.

DESMOND, J. The plaintiff, Pobeda RT II, LLC (Pobeda),

brought this action after the zoning board of appeals of

1 Cresset/WS Venture LLC.
2

Watertown (board)2 granted a special permit to Cresset/WS Venture

LLC (Cresset) to build a three-story research and development

facility. A Superior Court judge entered summary judgment for

the defendants on the ground that Pobeda lacked standing to

challenge the board's decision. Pobeda now appeals, and we

affirm.

Background. The following facts are undisputed. The

property that is the subject of the special permit is located at

202-204 Arsenal Street within an industrial zone in Watertown

(subject property). Pobeda owns three properties in a nearby

residential neighborhood. Pobeda is an abutter because one of

its properties shares a lot line with the subject property.

In December 2020, the board approved Cresset's application

for a special permit to develop a three-story, 88,572 square

foot research and development facility on the subject property

(project).3 Pobeda filed a complaint in the Superior Court under

G. L. c. 40A, § 17, seeking judicial review of the board's

decision to issue the special permit, asserting that the

proposed project would "severely devalue[]" Pobeda's property

interests.

2 The board did not file a brief or appear at oral argument.

3 The board's decision modified a special permit Cresset had
obtained in 2014 to build a single-story, 33,157 square foot
retail building on the subject property.
3

Cresset filed a motion for summary judgment, contending

that Pobeda did not have standing to contest the board's

decision. Pobeda opposed the motion, and after a hearing, a

judge found that Pobeda had failed to provide credible evidence

of aggrievement and ordered summary judgment to enter for

Cresset. This appeal followed.

Discussion. 1. Standard of review. We review the

Superior Court's summary judgment decision de novo. See

Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct.

515, 517 (2011). "To prevail on a motion for summary judgment,

the moving party bears the burden of 'show[ing] that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law' based on the

undisputed facts." Premier Capital, LLC v. KMZ, Inc., 464 Mass.

467, 474 (2013), quoting Mass. R. Civ. P. 56 (c), as amended,

436 Mass. 1404 (2002). We view the evidence and draw all

reasonable inferences therefrom in the light most favorable to

the nonmoving party. See 81 Spooner Rd., LLC v. Zoning Bd. of

Appeals of Brookline, 461 Mass. 692, 699 (2012).

2. Standing. "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, 461 Mass. at

700, quoting G. L. c. 40A, § 17. An abutter, such as Pobeda, is

entitled to a rebuttable presumption of aggrievement, Talmo v.
4

Zoning Bd. of Appeals of Framingham, 93 Mass. App. Ct. 626, 628

(2018), quoting 81 Spooner Rd., LLC, supra, which may be

rebutted in either of two ways: (1) "by showing that, as a

matter of law, the claims of aggrievement raised by an abutter,

either in the complaint or during discovery, are not interests

that the Zoning Act is intended to protect," or (2) "by coming

forward with credible affirmative evidence that refutes the

presumption." 81 Spooner Rd., LLC, supra at 702.

Pobeda's primary argument on appeal is that Cresset failed

to rebut Pobeda's presumption of aggrievement with respect to

Pobeda's claim of diminution of property value. Pobeda

dismissively contends that "[u]nlike the expert affidavits

[Cresset] employed to attack alternative bases of [aggrievement]

[such as] noise, air quality, light and shadow," Cresset sought

to rebut Pobeda's claim of property value diminution by

"lean[ing] casually on a point of law."

The "point of law" Cresset relies upon, however, provides

that diminution in property value is an insufficient basis for

standing unless "it is 'derivative of or related to cognizable

interests protected by the applicable zoning scheme.'" Kenner

v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 123 (2011),

quoting Standerwick v. Zoning Bd. of Appeals of Andover, 447

Mass. 20, 31-32 (2006). By invoking this principle, Cresset

seeks to rebut Pobeda's presumption of standing by establishing
5

that diminution of property value as alleged in this instance is

not an interest that Watertown's zoning ordinance "intended to

protect." See 81 Spooner Rd., LLC, 461 Mass. at 702.

In Kenner, 459 Mass. at 123-124, the Supreme Judicial Court

considered whether diminution in property value, resulting from

the construction of a new house that would partially obstruct

the plaintiffs' ocean view, could serve as a legitimate basis

for standing. The court emphasized that "[z]oning legislation

'is not designed for the preservation of the economic value of

property, except in so far as that end is served by making the

community a safe and healthy place in which to live'" (emphasis

added; citation omitted). Id. at 123. The court explained that

granting standing based on a claimed diminution in property

value without a clear link to the zoning scheme's community-

oriented protective interests, would sidestep the "rigorous

standing requirements we have consistently recognized"

(citations omitted). Id. at 124. In other words, it would

allow an individual to challenge a zoning decision by asserting

potential economic loss, even where an alleged decline in that

individual's property value is not tied to an interest protected

by the community's zoning scheme. See id. Because the Kenner

plaintiffs' view of the ocean was not an interest protected by

the town of Chatham's zoning bylaw, the court held that the
6

alleged diminution in value of the plaintiffs' property arising

from the impaired view was not a basis for standing. Id.

Here, to create the necessary link between Watertown's

zoning ordinance and property value, Pobeda relies on § 1.00 of

the ordinance, which states that the purpose of the ordinance

"is declared to be the promotion of the public health, safety,

convenience[,] and welfare" by, among other things, "conserving

the value of land and buildings." However, statements of

legislative purpose "suggest standards for the exercise of

discretion where such discretion is otherwise provided. They

are not themselves a source of discretion." McCaffrey v. Board

of Appeals of Ipswich, 4 Mass. App. Ct. 109, 112 (1976). Pobeda

points to no corresponding section of the ordinance that

concerns property values. Insofar as § 1.00 of the ordinance

seeks to conserve property value, it does not do so to protect

individual economic interests, but instead to serve the broader

objectives of promoting public safety and health. This

prioritization of the collective well-being of the community

over individual economic considerations is the very basis upon

which the constitutionality of zoning legislation hinges. See

Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495, 503-

504 (1940) (zoning legislation "not designed for the

preservation of the economic value of property, except in so far

as that end is served by making the community a safe and healthy
7

place in which to live . . . [and] [i]t is upon [those] grounds

that . . . zoning legislation has been held constitutional").

See also Opinion of the Justices, 234 Mass. 597, 611 (1920)

(acknowledging that laws and ordinances promulgated pursuant to

State's police power may lessen value of private property, but

owners of such property are "compensated by the general benefit

to the community of which he is a member").

The language in Watertown's zoning ordinance about

"conserving the value of land and buildings" implicitly

recognizes that property values can influence the overall health

and stability of the community, and cites conservation of

property values as one of several ways that it endeavors to

achieve its community-oriented zoning purpose. See McCaffrey, 4

Mass. App. Ct. at 112. Because Pobeda has failed to establish

how its property value diminution claim is tied to the
8

ordinance's broader public goals, the alleged diminution in

value of Pobeda's property is not a basis for standing.4,5

Pobeda fairs no better to the extent it seeks to tether its

claim to the portions of § 1.00 enumerating "encouraging the

most appropriate use of land" and "reducing hazards from . . .

other dangers" as additional means of promoting "the public

health, safety, convenience[,] and welfare." Pobeda asserts

that these provisions are implicated by the "half-football field

proximity [of Pobeda's property] to a glaringly visible 88,000

[square foot] biotechnology laboratory building: the victim of

the problematic collision of an industrial zone . . . with a

residential zone." However, § 5.05(k) of Watertown's zoning

ordinance states that "[f]or all uses allowed by special permit"

in an industrial zoning district, "no part of any structure when

abutting a residential zoning district shall be closer than

4 We note that the Chatham zoning bylaw at issue in Kenner
included a provision stating that preservation of the value of
land and buildings was among its purposes, and that the brief of
the plaintiffs in that case called that provision to the
attention of the Supreme Judicial Court. See Nantucket
Conservation Found., Inc. v. Russell Mgt., Inc., 2 Mass. App.
Ct. 868, 868-869 (1974) (taking judicial notice of records of
Supreme Judicial Court to refute defendant's attempt to
distinguish certain cases). There was no suggestion in the
Kenner decision that such a clause, alone, gives rise to an
individual's standing to challenge a zoning decision.

5 We limit our holding to the facts of this case and leave
the question of whether a plaintiff can ever succeed in showing
that a zoning bylaw protects individual property values for
another day.
9

[twenty-five] feet as measured perpendicular to the property

line of said residential district." Therefore, the "half-

football field proximity" of the subject property to Pobeda's

property is approximately six times longer than the twenty-five

feet of distance between industrial structures and residential

zones that the zoning ordinance protects.

Moreover, Pobeda's assertion that its property value

diminution claim implicates the provision of the ordinance aimed

at "reducing hazards from . . . other dangers" is undermined by

the fact that Pobeda's concern is not rooted in any actual

danger or harm to its properties, but rather is rooted to the

public perception of the dangers of biolabs and its impact on

Pobeda's property value. This emphasis on diminution of

property value rather than on the actual presence of a hazardous

condition leaves Pobeda's speculative concerns untethered to the

provision of the ordinance concerning the reduction of danger.

Cresset thus established that Pobeda had "no reasonable

expectation of proving a legally cognizable injury." 81 Spooner

Rd., LLC, 461 Mass. at 702. See Standerwick, 447 Mass. at 35,

citing Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991) ("In a summary judgment context, a defendant is not

required to present affirmative evidence that refutes a

plaintiff's basis for standing"). Therefore, the motion judge
10

properly concluded that Pobeda does not have standing to

challenge the board's decision.6

Judgment affirmed.

6 To the extent we did not address other arguments, they
"have not been overlooked. We find nothing in them that
requires discussion." Commonwealth v. Domanski, 332 Mass. 66,
78 (1954).