CHARLES D. BONANNO, Trustee, & Another v. ZONING BOARD OF APPEALS OF GLOUCESTER & 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-200

CHARLES D. BONANNO, trustee,1 & another2

vs.

ZONING BOARD OF APPEALS OF GLOUCESTER & others.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Two of the defendants, Joseph and Gloria DiStefano

(defendants), own a vacant lot located at 13 Sleepy Hollow Road

in the private Hawks section of Wingaersheek Beach in the city

of Gloucester (defendants' property). On November 27, 2018, the

building commissioner of Gloucester determined that it was a

buildable lot. On June 13, 2019, the city's zoning board of

1 Of the Ozone Realty Trust.

2 Allison C. Bonanno, trustee of the Ozone Realty Trust.

3Building commissioner of Gloucester; Joseph DiStefano,
individually and as trustee of the Joseph DiStefano Revocable
Trust dated March 6, 2019; Gloria DiStefano, individually and as
trustee of the Gloria L. DiStefano Revocable Trust dated March
6, 2019; Gerald McGovern; and Sheila McGovern.
appeals (ZBA) affirmed the building commissioner's determination

(ZBA decision).

The plaintiffs, Charles D. Bonanno and Allison C. Bonanno,

as trustees of the Ozone Realty Trust (plaintiffs), own 11R

Sleepy Hollow Road (plaintiffs' property), an abutter to the

defendants' property. They filed an appeal in the Superior

Court, pursuant to G. L. c. 40A, § 17, challenging the ZBA

decision. The defendants filed a motion for summary judgment on

the ground that the plaintiffs lacked standing to bring an

action under G. L. c. 40A, § 17. In a written decision, a judge

of the Land Court rejected all but one of the aggrievement

claims raised by the plaintiffs to establish standing, as harms

that were either not particular to the plaintiffs or too

speculative. The judge determined that one of these grounds --

a claim of interference with the plaintiffs' use of their

easement -- was sufficiently particular to the plaintiffs, if

credited, to confer standing. Accordingly, the judge denied

summary judgment on that issue but allowed the defendants'

motion in all other respects.

The judge held a trial on the issue of standing. After

trial, the judge found that any impact on the plaintiffs' use of

their driveway easement caused by the defendants' proposed

structure would be de minimis or speculative and therefore did

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not confer standing. The judge then dismissed the appeal. We

affirm.

Background. The parties are well acquainted with the facts

as detailed in the judge's thorough decisions and the parties'

statements of material facts not in dispute. Briefly, the

defendants seek to build a home on their property, a

historically natural, nonconforming vacant lot fronting Sleepy

Hollow Road. The northwest corner of the plaintiffs' property

directly abuts the southeast corner of the defendants' property.

The plaintiffs' property is a landlocked "rear" parcel that has

access to Sleepy Hollow Road solely by way of an easement twenty

feet wide, with ten feet on the northernmost portion, abutting

11 Sleepy Hollow Road, and the remaining ten feet on the

southernmost portions of the defendants' property and 13R Sleepy

Hollow Road.

The defendants propose to construct a new two-story house

on their property. They plan to put the foundation of the new

structure as close to Sleepy Hollow Road and the plaintiffs'

shared driveway easement as possible, using superseding setbacks

to have ocean views. The inland side of the proposed structure

is four feet from the driveway easement and fourteen feet from

the property line.

The plaintiffs use their property as a summer home. The

plaintiffs and their invitees use a variety of passenger

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vehicles to access the property, including a Toyota Highlander,

taxicabs, and other cars belonging to family and friends.

Vendors and contractors service the property seasonally using

larger-sized vehicles. The plaintiffs do not know whether

contractors generally enter the easement by driving forward or

by backing into the property. The plaintiffs regularly bring a

boat trailer to their property. When leaving the property, the

plaintiffs sometimes drive forward onto Sleepy Hollow Road and

sometimes back out onto Sleepy Hollow Road.

Due to the current construction fencing in place at the

defendants' property, the plaintiffs have to "look through two

sides" of the fence when turning onto Sleepy Hollow Road. The

fencing does not impair sight lines to Sleepy Hollow Road from

the driveway easement. In the four to five years the fence has

been up, the plaintiffs have been able to successfully negotiate

turning into and out of the driveway.

Two traffic engineers conducted field reviews, analyzed

relevant plans, used modeling software to render sight lines,

and testified at trial as experts. The experts agreed that

passenger vehicles can make a multipoint turn to leave the

property driving forward onto Sleepy Hollow Road. Both experts

opined that larger vehicles -- including vehicles with trailers,

and delivery and service type vehicles such as box trucks --

cannot make multipoint turns in front of the plaintiffs'

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property. The judge credited this testimony. The judge found,

with the benefit of a view, that passenger vehicles and smaller

trucks that are either driving forward or backing up onto Sleepy

Hollow Road can see beyond the defendants' proposed development

and will not have their sight lines impaired.

The plaintiffs' expert opined that the location of the

proposed structure will only impact the sight lines of larger

nonpassenger vehicles, including service vehicles or vehicles

with a trailer in tow, and only when they are backing out of the

driveway easement onto Sleepy Hollow Road. The judge found that

any harm this might cause to the plaintiffs' use of their

driveway easement was speculative.

After trial, the judge dismissed the plaintiffs' appeal.

The judge reasoned that the plaintiffs are not persons aggrieved

under G. L. c. 40A where their presumption of standing had been

rebutted and they failed to demonstrate a specific harm to them

that is more than de minimis or speculative. Allison Bonanno

appealed.4

Discussion. Persons aggrieved by a zoning board decision

have standing to contest it if they suffer "some infringement of

[their] legal rights" that is "more than minimal or slightly

appreciable, and the right or interest [is] one that G. L.

4 After judgment entered, a suggestion of death was filed
for Charles Bonanno.

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c. 40A is intended to protect" (quotation and citations

omitted). Murchison v. Zoning Bd. of Appeals of Sherborn, 485

Mass. 209, 213 (2020).

1. Summary judgment. We review de novo the judge's

decision granting summary judgment. Stone v. Zoning Bd. of

Appeals of Northborough, 496 Mass. 366, 373 (2025). "Because a

judge does not engage in fact finding when ruling on [a motion]

for summary judgment, we do not give deference to the judge's

decision." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of

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

Here, the plaintiffs raised issues of density, interference

with the use of their easement, pedestrian safety, restricted

visibility, and impact on views. The judge rejected all of

these claims of aggrievement on summary judgment, except

interference with the use of the easement. All of these

concerns, except impact on views, are "typical" interests that

G. L. c. 40A is designed to protect, Murchison, 485 Mass. at

214, and thus we assume the plaintiffs have met that portion of

the standing requirements.5 However, simply identifying a zoning

5 Concerns about visual impacts do not generally confer
standing, unless a town or city specifically defines visual
impacts as a protected interest in the ordinance. Martin v.
Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints, 434 Mass. 141, 146-147 (2001);
Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct.
685, 688 (1994). The judge concluded that the plaintiffs had

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violation or an interest protected by G. L. c. 40A, § 17, is not

the end of the analysis.

"[E]stablishing standing requires a plaintiff to do more

than merely allege a zoning violation." Murchison, 485 Mass. at

214. The plaintiffs must demonstrate that they will be harmed

in a manner that is "different from general concerns shared by

the rest of the neighborhood." Id. at 215. In short, the

plaintiffs must show how the proposed project will directly

affect the use and enjoyment of their property. Thus, for

example, in Dwyer v. Gallo, 73 Mass. App. Ct. 292, 296-297

(2008), even though abutters had identified the project's

violations of the density provisions of the local bylaw, their

standing was demonstrated only when they also established direct

harm by describing "the close proximity of [the proposed

structures] to [their] rear deck and sunroom," the loss of

privacy already resulting from preliminary tree clearing, and

their impaired views that affected their "privacy and use and

enjoyment of their property."

Here, while the plaintiffs articulated concerns protected

by G. L. c. 40A, they failed to present any evidence that those

not identified any such protected interest in the ordinance. We
agree. Accordingly, their complained-of visual impacts (namely,
impact on their views of the sunset) are insufficient to
constitute aggrievement.

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concerns will directly harm their use and enjoyment of their

property. Although as abutters, the plaintiffs enjoyed a

presumption of standing, see Marashlian v. Zoning Bd. of Appeals

of Newburyport, 421 Mass. 719, 721 (1996); Sheehan v. Zoning Bd.

of Appeals of Plymouth, 65 Mass. App. Ct. 52, 54 (2005), that

presumption of standing has been challenged, and "the question

becomes whether the evidence supports the plaintiffs' claims of

aggrievement." Murchison, 485 Mass. at 213.

First, the judge determined, the plaintiffs' claim that

pedestrian safety could be impacted by the defendants'

development "is not particular to the [plaintiffs] but is rather

a harm to a general civic interest that is insufficient to

confer standing." We agree. See Harvard Sq. Defense Fund, Inc.

v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 495 (1989)

(general civic interest in enforcement of zoning laws is not

enough to confer standing); Murray v. Board of Appeals of

Barnstable, 22 Mass. App. Ct. 473, 476 (1986).

Second, the judge saw no evidence that the defendants'

proposed structure will cause overcrowding or violate density

provisions of the zoning ordinance. Again, we agree. See

Murchison, 485 Mass. at 214 (plaintiff must show "evidence of an

injury particular to the plaintiffs, as opposed to the

neighborhood in general, the injury must be causally related to

violation of zoning laws, and it must be more than de minimis").

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The plaintiffs did not produce evidence that the neighborhood is

overly crowded or that the defendants' proposed project will

materially contribute to any overcrowding, beyond the personal

opinions of Charles Bonanno. "This was not enough." Stone, 496

Mass. at 377. See id. (plaintiffs' "personal assessment that

noise [from proposed warehouse] . . . will have an impact on the

enjoyment of their home" was insufficient to establish standing

under G. L. c. 40A). Also, any evidence of overcrowding was not

like the testimony offered in Dwyer, 73 Mass. App. Ct. at 297;

it "did not demonstrate harm particular to the plaintiffs,

different from general concerns shared by the rest of the

neighborhood." Murchison, supra at 215.

2. Standing trial. As noted, the judge found that there

was a material issue whether the defendants' proposed project

would impact the plaintiffs' use of their driveway easement

sufficiently to confer standing. Accordingly, he held a

standing trial on this issue. In addition to taking testimony

from two experts and Charles Bonanno, the judge conducted a view

so he could evaluate the impact of the proposed project on the

sight lines at the intersection of Sleepy Hollow Road and the

driveway easement.

After a trial, "[a] judge's findings of aggrieved [person]

status are 'entitled to deference'" (citation omitted). Wendy's

Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of

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Billerica, 454 Mass. 374, 384 (2009). Indeed, "[w]hether an

individual is aggrieved is a question of fact for the trial

judge, . . . which should not be reversed unless clearly

erroneous" (citations omitted). Sheehan, 65 Mass. App. Ct. at

54-55. Again, any harm to an interest which zoning laws are

designed to protect "must be more than de minimis." Murchison,

485 Mass. at 214.

Because the defendants rebutted the plaintiffs' evidence of

standing based on alleged interference with their use of their

driveway easement, the burden rested with the plaintiffs to "put

forth credible evidence to substantiate [their] allegations" of

aggrievement. Murchison, 485 Mass. at 215; quoting Marashlian,

421 Mass. at 721.

At a trial, standing is decided on "all the evidence with

no benefit to the plaintiffs from the presumption" (citation

omitted). Marashlian, 421 Mass. at 721. Although the court

does not view claims of aggrievement narrowly, id. at 722,

neither conjecture nor speculative personal opinion substitutes

for proof. Murchison, 485 Mass. at 215. "[T]he plaintiff's

claimed injury must be more than speculative" (quotation and

citation omitted). Stone, 496 Mass. at 374.

The plaintiffs contend that the proposed development on the

defendants' property will harm their use of the driveway

easement because it will obstruct their view of Sleepy Hollow

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Road as they back out of the driveway. After considering all of

the evidence, the judge found that any aggrievement with respect

to passenger vehicles and smaller trucks was de minimis, and the

claimed aggrievement with respect to nonpassenger vehicles was

speculative; as such, the evidence was insufficient to confer

standing.

First, the plaintiffs claim that the current construction

fence surrounding the defendants' property obstructs visibility

at the Sleepy Hollow intersection and interferes with the use of

their driveway easement. However, the judge noted that Charles

Bonanno had been able to successfully negotiate getting in and

out of the driveway in the four to five years the fence had been

up. Furthermore, at the view, the judge saw that the fence did

not impair sight lines to Sleepy Hollow Road.

Second, the plaintiffs claim that future construction of

the defendants' proposed development will impact the plaintiffs'

use of their driveway easement. The judge noted that the only

evidence the plaintiffs offered in support of this claim was

Charles Bonanno's anecdotal recounting of his experience when

the abutting rear lot owners performed construction on their

property, which he acknowledged was a "different situation."

The judge rejected these concerns because they were entirely

speculative. Subjective and unspecific concerns about the

possible impairment of interests are insufficient bases for

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aggrievement. See Stone, 496 Mass. at 378 ("[n]either

speculation nor common sense is sufficient to establish

aggrievement"); Murchison, 485 Mass. at 215.

Finally, the plaintiffs claim that the proposed development

will impair the visibility of passenger vehicles and larger

nonpassenger vehicles backing out of the driveway easement. The

judge noted that both experts agreed that passenger vehicles

will be able to see beyond the defendants' proposed development

and will not have their sight lines impaired, regardless of

whether the passenger vehicles are driving forward onto Sleepy

Hollow Road or backing out.

Larger nonpassenger vehicles include landscaping trucks,

trucks towing trailers or boats, and other oversized panel

trucks. The plaintiffs did not provide testimony from service

truck drivers or other evidence establishing that operators of

these vehicles had difficulty viewing oncoming traffic on Sleepy

Hollow Road.6 Charles Bonanno himself acknowledged that he had

entered the driveway easement with his boat trailer driving both

forward and in reverse.7 Based on the evidence presented, the

6 As noted, the plaintiffs admitted that they did not know
whether the landscaper generally enters the easement driving
forward or backward into their property.

7 This admission supports an inference that any large
nonpassenger vehicles, including vehicles with trailers, could
back into the driveway easement from Sleepy Hollow Road.

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judge found that the plaintiffs had failed to establish through

direct facts that the ability of any nonpassenger vehicles to

use the driveway easement will be impaired by the proposed

development, current fencing, or future construction.

Accordingly, the judge found speculative the plaintiffs' alleged

concern that nonpassenger vehicles will have their views

obstructed by the proposed development when backing out of the

driveway easement onto Sleepy Hollow Road. See Stone, 496 Mass.

at 377-378.

On the record presented, the judge did not clearly err in

finding that the plaintiffs failed to articulate a harm,

personal to them, that is "more than de minimis," Murchison, 485

Mass. at 214, or beyond "speculative" (citation omitted).

Stone, 496 Mass. at 374.

Judgment affirmed.

By the Court (Meade,
Desmond & Wood, JJ.8),

Clerk

Entered: February 4, 2026.

Therefore, to the extent that the project would interfere with
the sight lines of such vehicles when they are backing out onto
Sleepy Hollow Road, one obvious solution is to back into the
driveway easement from Sleepy Hollow Road and depart driving
forward.

8 The panelists are listed in order of seniority.

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