TONY RODRIGUES v. ZONING BOARD OF APPEALS OF BROCKTON & Another.

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-117

TONY RODRIGUES

vs.

ZONING BOARD OF APPEALS OF BROCKTON & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A judge of the Land Court granted summary judgment, ruling

that plaintiff Tony Rodrigues (plaintiff) lacked standing to

challenge a decision of the Zoning Board of Appeals of Brockton

(board) granting a variance to Robert Jordan (defendant),

allowing him to operate a seafood packaging business.2 The

plaintiff appeals, contending that there were genuine issues of

material fact regarding the plaintiff's standing under G. L.

c. 40A, § 17, and that the judge erred in allowing the

defendant's motions for summary judgment. We affirm.

1 Robert Jordan.

2For simplicity, we refer to the members of the Zoning
Board of Appeals of Brockton as "the board," and to private
defendant Robert Jordan as "the defendant."
Background. The defendant entered into an agreement to

purchase the property at 555 Plain Street in Brockton (locus) so

that he could relocate his seafood packaging business there.

The plaintiff's property at 18 Cushing Road in Brockton lies

within three hundred feet of the locus but does not abut it.

The locus is improved with a two-floor masonry structure

and has a history of nonconforming uses. Sections 27-4 and 27-5

of the Brockton zoning ordinance classify the locus as a single-

family residential lot, which prohibits commercial or industrial

uses. Prior to the city's 1967 adoption of the zoning

ordinance, the locus was used first as a commercial dry cleaner

and later as an auto repair shop. In 1984, the board granted a

use variance allowing the locus to be used as a facility for the

manufacture and sale of cabinets. The locus has also been used

as a church and subsequently as a plumbing warehouse -- its most

recent use.

The defendant's seafood business purchases precut seafood

in Boston, hand cuts and "re-portions" it at the business

facility, packs it in small individual containers, and delivers

those containers to local restaurants and farmers' markets in

refrigerated pickup trucks and vans. The business produces two

pounds of fish waste daily and stores such waste in a small

plastic barrel inside a walk-in cooler. Twelve vehicles are

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registered to the business -- nine refrigerated pickup trucks

and vans and three cars. The business operates from 5 A.M. to

7 P.M. Monday through Saturday.3 The employees keep the delivery

vehicles overnight at their homes, arrive at the facility in a

vehicle in the morning, and then leave between late morning and

afternoon for deliveries.

The defendant intends to attach a walk-in cooler measuring

twenty feet by forty feet to the rear of the existing structure

on the locus. The walk-in cooler has a condenser that produces

noise similar in volume to a residential air conditioner. With

the addition of the walk-in cooler, the structure on the locus

would be eighty to one hundred feet away from the rear lot line

of the plaintiff's property.

On September 23, 2020, the board granted a variance to the

defendant, permitting the business to operate on the locus.

This variance included approval of the walk-in cooler addition.

The plaintiff subsequently appealed to the Land Court, alleging

harm based on noise, odor, density, and traffic produced by the

seafood business. On September 2, 2021, the defendant moved for

summary judgment, challenging the plaintiff's standing as a

person aggrieved under G. L. c. 40A, § 17, to appeal the

3 The board's decision would limit future operations to
5 P.M. on weekdays and 3 P.M. on Saturdays.

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decision of the board. On June 21, 2022, the judge granted

partial summary judgment, ruling that the plaintiff failed to

establish standing for harm based on noise, odor, or density.

This order left the issue of traffic open, and the judge invited

the parties to solicit expert opinions on the issue. Following

the judge's suggestion, the defendant renewed his motion for

summary judgment, supported by an expert report prepared by a

traffic engineer. In opposition, the plaintiff retained an

expert who offered a competing opinion. On September 28, 2023,

the judge granted the defendant's renewed motion after holding a

hearing and finding that the plaintiff failed to establish

standing on the traffic issue. The plaintiff appealed.

Discussion. We review de novo the judge's decision

granting summary judgment to the defendant based on the

plaintiff's lack of standing. 81 Spooner Rd., LLC v. Zoning Bd.

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

"Only a 'person aggrieved' [has standing to] challenge a

decision of a zoning board of appeals." Marashlian v. Zoning

Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996),

quoting G. L. c. 40A, § 17. A "person aggrieved" is one who

"suffers some infringement of [their] legal rights."

Marashlian, supra, citing Circle Lounge & Grille, Inc. v. Board

of Appeal of Boston, 324 Mass. 427, 430 (1949). "Of particular

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importance, the right or interest asserted by a plaintiff

claiming aggrievement must be one that the Zoning Act is

intended to protect, either explicitly or implicitly." 81

Spooner Rd., LLC, 461 Mass. at 700 (discussing G. L. c. 40A).

"Aggrievement requires a showing of more than minimal or

slightly appreciable harm." Kenner v. Zoning Bd. of Appeals of

Chatham, 459 Mass. 115, 121, (2011).

"Abutters to the abutters within three hundred feet of the

property line of the petitioner," are defined as "parties in

interest" and entitled to notice of public hearings under G. L.

c. 40A, § 11, and therefore possess a rebuttable presumption

that they are "persons aggrieved" under G. L. c. 40A, § 17. See

Marashlian, 421 Mass. at 721. A defendant can rebut the

presumption by presenting "evidence that warrant[s] a finding

contrary to the presumed fact of aggrievement, or by showing

that the plaintiff has no reasonable expectation of proving a

cognizable harm" (quotations omitted). Picard v. Zoning Bd. of

Appeals of Westminster, 474 Mass. 570, 573 (2016), quoting 81

Spooner Rd., LLC, 461 Mass. at 702. "Once the presumption is

rebutted, the plaintiff 'must prove standing by putting forth

credible evidence to substantiate the allegations.'" Picard,

supra, quoting 81 Spooner Rd., LLC, 461 Mass. at 701. A

plaintiff's credible evidence must show "by direct facts and not

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by speculative personal opinion -- that his injury is special

and different from the concerns of the rest of the community."

Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20,

33 (2006), quoting Barvenik v. Aldermen of Newton, 33 Mass. App.

Ct. 129, 132 (1992). "[T]he jurisdictional issue of standing

will be decided on the basis of all the evidence, with no

benefit to the plaintiff from the presumption of aggrievement."

81 Spooner Rd., LLC, supra.

Here, the plaintiff enjoyed a presumption of standing as an

abutter to an abutter within three hundred feet from the locus.

He raised four bases for standing: noise, odor, density and

overcrowding, and traffic. Each basis falls within the

interests that "the Zoning Act is intended to protect, either

explicitly or implicitly." 81 Spooner Rd., LLC, 461 Mass. at

700. See Picard, 474 Mass. at 574 (density and overcrowding);

Marashlian, 421 Mass. at 722 (traffic); Aiello v. Planning Bd.

of Braintree, 91 Mass. App. Ct. 354, 366 (2017) (noise, odor).

We analyze each basis for standing, evaluating whether the

defendant successfully rebutted the plaintiff's presumption and,

if so, whether the plaintiff offered credible evidence to

substantiate his allegations.

1. Noise. The plaintiff claimed aggrievement based on

noise from two sources: (1) the condenser used to operate the

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planned walk-in cooler and (2) the commercial vehicles used in

the defendant's business.

Regarding the condenser, the defendant attested that it is

the same one used at his current facility and is no louder than

a residential air conditioner. Furthermore, any danger of

excessive noise was mitigated by the board's grant of the

plaintiff's variance petition, which required that "[n]oise from

any refrigeration shall be controlled so as not to be offensive

to the neighborhood." Because the defendant's attestation and

the board's requirement "'warrant[ed] a finding contrary to the

presumed fact' of aggrievement," the defendant rebutted the

plaintiff's presumption of standing on this issue. See Picard,

474 Mass. at 573, quoting 81 Spooner Rd., LLC, 461 Mass. at 702.

The plaintiff did not put forth any credible evidence to

substantiate his allegations of noise impact from the condenser.

Regarding the vehicles, the defendant attested that he and

his employees turn off their vehicles on arrival. The typical

workday ends by 1 P.M. when the employees have left to complete

their deliveries or have gone home. Therefore, the defendant's

business creates two brief periods of vehicular noise daily

during his employees' arrival and departure. This uncontested

evidence also sufficiently rebutted the plaintiff's presumption

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of standing. See Picard, 474 Mass. at 573, quoting 81 Spooner

Rd., LLC, 461 Mass. at 702.

With his presumption of standing based on noise rebutted,

the plaintiff offered unsupported assertions that he would be

harmed by noise from the condenser and the commercial vehicles.

These assertions represent the type of "speculative personal

opinion" rejected in Standerwick, 447 Mass. at 33. There was no

error.

2. Odor. The plaintiff claimed aggrievement based on

unpleasant fish odors produced by the defendant's business.

The defendant attested that his business produces less than

two pounds of fish waste daily. This waste is stored in the

cooler until it is removed from the premises. Additionally, the

variance required the defendant to store all fish waste in the

refrigerated cooler. Because the defendant's attestation and

the board's requirement "'warrant[ed] a finding contrary to the

presumed fact' of aggrievement," the defendant rebutted the

plaintiff's presumption of standing on this issue. Picard, 474

Mass. at 573, quoting 81 Spooner Rd., LLC, 461 Mass. at 702.

Following the defendant's rebuttal, the plaintiff

reiterated his assertion that he would suffer harm from the fish

odor produced by the plaintiff's business. Though it is

reasonable to infer that raw fish generally emits an odor, that

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fact alone is insufficient to establish "credible evidence to

substantiate the allegations" that he would suffer an injury

that "is special and different from the concerns of the rest of

the community" (citations omitted). Picard, 474 Mass. at 573-

574. As the judge noted in his findings, the plaintiff failed

to provide sufficient credible evidence to create a genuine

dispute of fact concerning whether he will experience any odor-

based harm, let alone one that is more than de minimis. See

Kenner, 459 Mass. at 124 (de minimis impacts not valid basis for

standing). Therefore, the judge did not err in granting summary

judgment on the plaintiff's claim of aggrievement from the odor

produced by the defendant's proposed use of the locus.

3. Density and overcrowding. The plaintiff claimed

aggrievement due to increased physical density and overcrowding

caused by the addition of the walk-in cooler. In support of

this argument, the plaintiff cited § 27-39 of the Brockton

zoning ordinance, which prohibits expansions of nonconforming

uses. The judge considered and rejected this interpretation.

We discern no error in his thoughtful and reasoned analysis of

the purpose of this zoning ordinance.

In a supplemental memorandum submitted after the first

summary judgment hearing, the defendant contended that the

limitations imposed by § 27-39 related only to constraining

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nonconforming uses, not density and overcrowding. See Murchison

v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209, 214 (2020)

(rejecting plaintiff's claim of standing based on violation of

dimensional lot width zoning requirement because "there is

nothing to demonstrate that the purpose of [the] dimensional lot

width zoning requirement is to control density or

overcrowding"). Because the defendant's legal argument

"'warrant[ed] a finding contrary to the presumed fact' of

aggrievement," the defendant rebutted the plaintiff's

presumption of standing on this issue. Picard, 474 Mass. at 573

(2016), quoting 81 Spooner Rd., LLC, 461 Mass. at 702.

Following the defendant's rebuttal, the plaintiff -- also

in a posthearing supplemental memorandum -- reasserted his

argument that the violation of § 27-39 underpinned his claim of

standing for density and overcrowding harm. The judge noted

that the claimed injury "must be causally related to violation

of zoning laws." Murchison, 485 Mass. at 214. Such causal

nexus exists for violations of zoning laws that are clearly

related to regulating density, such as setbacks, floor area

ratios, and minimum lot sizes. See Murchison, supra (setbacks);

81 Spooner Rd., LLC, 461 Mass. at 704 (floor area ratios); Dwyer

v. Gallo, 73 Mass. App. Ct. 292, 297-298 (2008) (minimum lot

sizes). We agree with the judge's thoughtful conclusion that

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§ 27-39 is "grounded in the intent to impose a quantifiable

constraint on the proliferation of uses that do not conform with

the area in which they are sited," and not on density and

overcrowding. See Murchison, supra. Therefore, the judge did

not err in granting summary judgment on the plaintiff's claim of

aggrievement from density and overcrowding.

4. Traffic. The plaintiff also claimed aggrievement based

on additional vehicle traffic on Plain Street generated by the

defendant's business operation.

Prior to the hearing on the defendant's renewed motion for

summary judgment, the defendant submitted a study prepared by a

traffic expert that concluded that the proposed use of the locus

would have a de minimis traffic impact. The defendant's expert

estimated that, compared to the prior uses of the locus, the

defendant's business would generate less daily vehicle traffic

and would have a de minimis effect on school bus and public

transit operations. Because the defendant's expert report

"'warrant[ed] a finding contrary to the presumed fact' of

aggrievement," the defendant rebutted the plaintiff's

presumption of standing on this issue. Picard, 474 Mass. at 573

(2016), quoting 81 Spooner Rd., LLC, 461 Mass. at 702.

In response, the plaintiff provided a competing expert

opinion. The plaintiff's expert questioned the methodology used

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by the defendant's expert but failed to identify any adverse

effect on traffic in the area. In fact, the plaintiff conceded

during the renewed summary judgment hearing that the report he

submitted did not provide an affirmative opinion opposing the

content presented in the defendant's report and agreed that

nothing in the record demonstrated that the project would cause

traffic to worsen.

On appeal, the plaintiff contends that his expert's

methodological criticisms raised an issue of material fact

regarding the reliability of the defendant's report under a

Daubert-Lanigan analysis. See Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579, 585-595 (1993); Commonwealth v. Lanigan, 419

Mass. 15, 25-26 (1994). The defendant waived this argument when

he consented to the judge's consideration of the plaintiff's

report at the outset of the second summary judgment hearing.

See Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 826 (2006),

citing Commonwealth v. Sparks, 433 Mass. 654, 659 (2001) ("To

preserve an objection to expert testimony pursuant to Lanigan, a

defendant must file a pretrial motion and request a hearing on

the subject"). Therefore, the judge did not err in granting

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summary judgment on the plaintiff's claim of aggrievement from

increased traffic.

Judgment affirmed.

By the Court (Vuono,
Hershfang & Tan, JJ.4),

Clerk

Entered: May 14, 2025.

4 The panelists are listed in order of seniority.

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