JOHN F. LINHARES & Others v. PLANNING BOARD OF DENNIS & Others.

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

25-P-594

JOHN F. LINHARES & others1

vs.

PLANNING BOARD OF DENNIS & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Janice Costa,3 filed a complaint in 2018

against the planning board of Dennis (board) and the trustees of

the Cape Commerce Nominee Trust (trust) under G. L. c. 40A,

§ 17, challenging the board's issuance to the trust of a special

permit to construct twenty-four single-family homes on a parcel

of land abutting her property.4 Following a bench trial in 2024,

1 Mary K. Linhares, Susan J. Sargent, and Janice Costa.

2David L. Howes; and Catherine MacGregor and Molly
MacGregor, as trustees of the Cape Commerce Nominee Trust.

3Of the four plaintiffs named in the complaint, only Costa
appeals.

4Defendant David L. Howes was listed as the owner of the
parcel on the board's special permit decision, but the trust
purchased the parcel from Howes in 2021.
a Superior Court judge (trial judge) entered judgment in favor

of the defendants, finding that the plaintiff lacked standing

and that the board's decision was, in any case, properly

supported by credible evidence. The plaintiff appeals,

contending that it was error to dismiss her complaint for lack

of standing, that the denial of her motion to amend the

complaint constituted an abuse of discretion, and that the

board's decision must be annulled for failure to comply with

statutory requirements. We affirm.

Background. The plaintiff owns and lives on a property

that fronts on Alexander Drive in South Dennis. The trust owns

the adjacent lot (lot 8), currently occupied by a single-family

home. The trust also owns an approximately five-acre parcel of

vacant land located behind both properties. In 2018, the trust

applied for a special permit to construct a twenty-eight unit

housing development on the rear parcel. Six of these units

would be deed-restricted affordable units. Residents of the

development would enter and exit the development via a driveway

to be constructed through lot 8.

At a board meeting in December 2018, the board voted to

grant the special permit for a twenty-four unit development,

with certain conditions. The plaintiff and the owners of two

other properties abutting the proposed development promptly

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appealed the board's decision to the Superior Court under G. L.

c. 40A, § 17. The complaint alleged that the board had acted in

excess of its authority by granting the special permit in the

absence of a finding by the Dennis board of health, required by

§ 4.9.2.2.2 of the Dennis zoning bylaw (bylaw), "that the waste

water system recommended for the site meets all state and local

environmental standards for the protection of public health and

water quality." In April 2019, the board of health voted to

approve the project's proposed wastewater treatment system. In

November 2020, a different Superior Court judge (motion judge)

allowed the plaintiff's motion to amend the complaint to

challenge the board of health's decision insofar as it was

incorporated into the board's special permit decision. Like the

original complaint, the first amended complaint related

exclusively to the development's planned wastewater treatment

system.

In October 2023, the trust submitted a revised plan, which

included the use of newer wastewater treatment technology. The

board of health approved the revised plan in January 2024. The

following May, the plaintiff sought to amend the complaint a

second time to challenge aspects of the board's special permit

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decision unrelated to wastewater treatment.5 The motion judge

denied the motion.

The case proceeded to trial in August 2024 before the trial

judge. Costa was the only plaintiff who participated. Prior to

trial, the plaintiff renewed her motion to amend the complaint;

the trial judge denied the motion and issued an order limiting

the trial to the allegations in the plaintiff's original

complaint. The parties stipulated that the trust waived its

right to use the original wastewater treatment system, that the

new system met the public health and water quality requirements

of § 4.9.2.2.2 of the bylaw, and that the board of health's

decision approving the new system was lawful.

Over the course of the two-day trial, the trust offered

testimony from four witnesses, including a traffic engineer, who

discussed the estimated traffic impact of the planned

development. The engineer testified that the development would

generate an average of 271 additional vehicle trips per day,

with about one vehicle every two to three minutes during peak

commuting hours. Based on this calculation, the engineer opined

that the development would be "a low generator" of traffic for

5 In her first and second motions to amend, the plaintiff
also sought to add parties to the complaint. Both times, the
motion judge denied this request. The plaintiff does not
challenge this aspect of the motion judge's decisions.

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the area. The plaintiff did not call any witnesses, as the

judge excluded her testimony and that of another abutter the

plaintiff wished to call on the issue of standing.

The trial judge issued findings of fact, rulings of law,

and an order for judgment affirming the board's decision to

grant the special permit. The judge concluded that the

plaintiff lacked standing to bring the action. Nevertheless,

the judge went on to address the merits of the board's decision

and found that it was "fully supported by the credible evidence"

and legally sound.

Discussion. 1. Standing. The plaintiff takes issue with

the trial judge's ruling that she did not have standing as an

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

board's issuance of the special permit. The judge reasoned that

the plaintiff's fears of substantially increased traffic, noise,

and exhaust from the 271 vehicle trips per day passing through

the property next door to hers, where at present there is no

traffic at all, was "rank speculation," and that she failed to

demonstrate that she would "suffer any legally cognizable

special or unique harm resulting from the project." "Standing

as an 'aggrieved' person requires evidence of an injury

particular to the plaintiffs, as opposed to the neighborhood in

general, the injury must be causally related to violation of

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zoning laws, and it must be more than de minimis." Murchison v.

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

Because the trial judge, in the interest of completeness,

addressed the merits of the plaintiff's challenge to the board's

special permit decision; because both parties have addressed the

merits in their brief; and because the issue of standing is not

dispositive of this appeal, we assume without deciding that the

plaintiff has standing. See Mostyn v. Department of Envtl.

Protection, 83 Mass. App. Ct. 788, 792 & n.12 (2013) (question

of standing need not be resolved where not outcome

determinative).

2. Denial of the plaintiff's motion to amend. "We review

the denial of a motion to amend the complaint for abuse of

discretion." Dzung Duy Nguyen v. Massachusetts Inst. of Tech.,

479 Mass. 436, 461 (2018). "Although leave to amend should be

'freely given when justice so requires,' such leave may be

denied where there is undue delay, undue prejudice to the

opposing party, or futility in the amendment." Id., quoting

Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974).

The plaintiff moved to amend the complaint about five and

one-half years into the litigation, four days before the final

pretrial conference, and two weeks before trial was scheduled to

begin. The proposed amended complaint contained three claims

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that had not previously been asserted: that the board's

decision was inadequate because it was written by the town

planner before the board hearing and did not sufficiently

address the three factors set forth in § 4.9.1.1 of the bylaw,6

that the development failed to meet the bylaw's dimensional

requirements, and that the development overloaded or

overburdened the easement appurtenant to lot 8. The motion

judge found "there has been undue delay here," as "it is hard to

envision how the new facts alleged in the Amended Complaint were

not known to the plaintiffs and their counsel long ago." The

plaintiff's brief fails to explain why the additional claims she

sought to raise in the second amended complaint could not have

been included in the original complaint. "We have stated that

an unexcused delay in seeking to amend is a valid basis for

6 The three factors specified in § 4.9.1.1 that the board
must consider in determining whether to grant a special permit
are as follows:

"(a) whether the applicant has conformed to the design
standards of this By-law and will deliver the needed
affordable units; (b) whether the proposed development site
plan is designed in its site allocation, proportions,
orientation, materials, landscaping and other features as
to provide a stable and desirable character complementary
and integral with the site's natural features; and
(c) whether the development, density increase or relaxation
of zoning standards has a material, detrimental effect on
the character of the neighborhood or Town and is consistent
with the performance standards of the Dennis Zoning By-
law."

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denial of a motion to amend," Mathis v. Massachusetts Elec. Co.,

409 Mass. 256, 264-265 (1991), particularly, as here, in light

of an impending trial. See Leonard v. Brimfield, 423 Mass. 152,

157 (1996) (motion to amend properly denied where "case had been

pending for over five years and the judge believed trial was

imminent"). We therefore discern no abuse of discretion in

denying the plaintiff permission to amend her complaint on the

ground of undue delay. Moreover, as discussed below, the motion

to amend could also have been denied on the ground of futility.

See Chang v. Winklevoss, 95 Mass. App. Ct. 202, 212 (2019).

3. Judgment on the merits. Notwithstanding his finding

that the plaintiff lacked standing, the trial judge addressed

the merits of the board's decision to grant the special permit.

"The standard of review for a special permit . . . requires the

judge to make independent findings on the evidence presented to

the judge, and to determine, based on that evidence, the legal

validity of the decision of the permit granting authority."

Barlow v. Planning Bd. of Wayland, 64 Mass. App. Ct. 314, 321

(2005). "If the board's decision is supported by the facts

found by the judge, it 'may be disturbed only if it is based on

a legally untenable ground, or is unreasonable, whimsical,

capricious or arbitrary.'" Fish v. Accidental Auto Body, Inc.,

95 Mass. App. Ct. 355, 362 (2019), quoting Bateman v. Board of

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Appeals of Georgetown, 56 Mass. App. Ct. 236, 242 (2002). The

judge made findings concerning the proposed wastewater treatment

system, as well as the project's site and building coverage,

setbacks, parking, trash, traffic, light and noise, and general

impact on the surrounding neighborhood. The judge further

determined that the board had made all findings necessary to

issue the special permit and that the decision was "fully

supported by the credible evidence" and a lawful exercise of the

board's discretion.

The plaintiff's primary argument on appeal for overturning

the board's decision is that the board failed to comply with its

statutory duty to "cause to be made a detailed record of its

proceedings, indicating the vote of each member upon each

question, . . . and setting forth clearly the reason for its

decision . . . ." G. L. c. 40A, § 9, thirteenth par., as

amended through St. 2018, c. 209, § 16. This, of course, is one

of the claims that the plaintiff was denied leave to assert in

the second amended complaint. In any case, the claim is

meritless.

The board's decision listed the vote of each member by

name. The plaintiff's contention that the statute required

recording each board member's vote on each of the three criteria

in § 4.9.1.1 of the bylaw is not supported by any of the cases

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cited in her brief. The statute requires the record of the

board's proceedings to include each member's vote on "each

question," which, when read in the context of G. L. c. 40A, § 9,

as a whole, refers to each special permit application, not each

and every consideration set forth in a municipality's zoning

bylaw.

The cases cited by the plaintiff do support her argument

that the board's decision must include a "definite statement of

rational causes and motives, founded on adequate findings."

MacGibbon v. Board of Appeals of Duxbury, 347 Mass. 690, 692

(1964), quoting Prusik v. Board of Appeal of Boston, 262 Mass.

451, 458 (1928). The trial judge concluded, and we agree, that

the board's decision was accompanied by a record that satisfies

this requirement and evinces adequate consideration of the

applicable factors. The board's findings span three full pages

and include its conclusions on the three factors listed in

§ 4.9.1.1, as well as numerous other considerations. The

board's imposition of nineteen numbered conditions on the

project further demonstrates thorough attention to the interests

that the bylaw was intended to promote.

The plaintiff also contends that the special permit

decision should be annulled because the town planner drafted the

board's decision ahead of the meeting, and the board adopted the

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planner's draft without modification. The plaintiff offers no

legal basis to support this claim, and we, like the trial judge,

can find none. "Assertions of error that lack legal citation do

not rise to the level of appellate argument and will not be

reviewed by this court." Adoption of Zak, 90 Mass. App. Ct.

840, 842 n.4 (2017).

To the extent the plaintiff contends that the board erred

by failing to consider the trust's overloading or overburdening

of the easement appurtenant to lot 8 -- another claim that the

plaintiff was denied leave to pursue -- we disagree. "The

primary purpose of zoning with reference to land use is the

preservation in the public interest of certain neighborhoods

against uses which are believed to be deleterious to such

neighborhoods." Circle Lounge & Grille, Inc. v. Board of Appeal

of Boston, 324 Mass. 427, 431 (1949). For that reason,

"injuries to . . . private easement rights are not within the

scope of concern of the Zoning Act." Picard v. Zoning Bd. of

Appeals of Westminster, 474 Mass. 570, 575 (2016). The

plaintiff might assert -- and indeed has asserted -- her

easement-related claims in a separate action. See id. at 575

n.10 ("Although [plaintiff] lacks standing under the Zoning Act,

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nothing we say here deprives him of his right to pursue a remedy

at common law for any actual harm to his easement rights").7,8

Judgment affirmed.

By the Court (Massing,
Singh & Grant, JJ.9),

Clerk

Entered: May 22, 2026.

7 The plaintiff makes no argument concerning the bylaw's
dimensional requirements, and therefore any such claim, whether
pertaining to the merits of the special permit or the denial of
the motion to amend, is waived. See Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019)
("appellate court need not pass upon questions or issues not
argued in the brief").

8 The trust's request for an award of attorney's fees and
costs is denied.

9 The panelists are listed in order of seniority.

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