JOHN WHITTIER & Others v. PLANNING BOARD OF IPSWICH & 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

23-P-1108

JOHN WHITTIER & others1

vs.

PLANNING BOARD OF IPSWICH & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendant Ora, Inc. (Ora), is an ophthalmic research and

development company. Defendant planning board of the town of

Ipswich (board) issued Ora a special permit to build a

conference center consisting of corporate offices, dining

facilities, a twenty-one-room guest lodge, a health and wellness

center, and ninety parking spaces at 55 Waldingfield Road, a

property located in a residential district where commercial uses

beyond agriculture and animal husbandry are generally not

1Jennifer Eddy, Thomas Eddy, John Lichten, Mary Milgrom,
Michael Greene, Phyllis Greene, Elisabeth Massey, Jonathan
Petersen, and Geoffrey Noyes as trustee of Sunswick Realty
Trust.

2 Ora, Inc.
permitted. The board issued a special permit and site plan

approval under the section of the Ipswich protective zoning

bylaw (Ipswich bylaw) that authorizes "Great Estate Preservation

Development" (GEPD bylaw).

The plaintiffs own neighboring properties on or near

Waldingfield Road, five of which directly abut the Ora project

site. Following the board's decision to issue Ora's special

permit, the plaintiffs brought a complaint in the Land Court

challenging the issuance of said permit and the site plan

approval.3 As relevant to this appeal, Ora moved to dismiss the

plaintiffs' complaint pursuant to Mass. R. Civ. P. 12 (b) (1),

365 Mass. 754 (1974), arguing that the court lacked subject

matter jurisdiction because none of the plaintiffs were "persons

aggrieved" for purposes of conferring standing. See G. L.

c. 40A, § 17. Following a hearing, the judge ruled that the

plaintiffs lacked standing and dismissed their complaint. On

the plaintiffs' appeal, we affirm.

Discussion. 1. Standard of review. Where a court

determines that a plaintiff lacks standing, it must dismiss

3 In counts one through three of their complaint, the
plaintiffs claimed that the board's decision was legally
untenable. In count four, the plaintiffs argued that the board
failed to comply with bylaw procedures and its own rules. In
count five, the plaintiffs claimed that the board's decision was
not based on substantial evidence and was arbitrary and
capricious.

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their complaint for lack of subject matter jurisdiction. See

Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998).

Furthermore, standing is "essentially a question of fact for the

trial judge." Marashlian v. Zoning Bd. of Appeals of

Newburyport, 421 Mass. 719, 721 (1996). Thus, when reviewing a

judgment dismissing a plaintiff's complaint for lack of

standing, "the judge's findings of fact will not be set aside

unless they are clearly erroneous or there is no evidence to

support them" (quotation and citation omitted). Wendy's Old

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

Billerica, 454 Mass. 374, 383 (2009). Determinations of law,

however, are reviewed de novo. Doherty v. Planning Bd. of

Scituate, 467 Mass. 560, 567 (2014).

Because Ora moved for dismissal under Mass. R. Civ. P.

12 (b) (1) and argued that the plaintiffs lacked standing, the

judge was required to "accept the factual allegations in the

plaintiffs' complaint, as well as any favorable inferences

reasonably drawn from them, as true." Ginther, 427 Mass. at

322. Yet, the judge could also "consider affidavits and other

matter outside the face of the complaint which [were] used to

support the movant's claim that the court lack[ed] subject

matter jurisdiction." Id. at n.6.

2. Rebuttable presumption of standing. The plaintiffs in

this case argue that, based on their traffic and safety

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concerns, the judge erred in finding that Ora successfully

rebutted the presumption of standing for the five plaintiffs who

are statutory abutters to 55 Waldingfield Road. We disagree.

Under G. L. c. 40A, § 11, abutters enjoy a rebuttable

presumption that they are "aggrieved" persons and thus entitled

to standing. 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of

Brookline, 461 Mass. 692, 700 (2012). That presumption,

however, can be rebutted if a defendant shows 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." Picard v. Zoning Bd. of

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

Spooner Rd., LLC, supra at 702. A defendant can also rebut the

presumption "by coming forward with credible affirmative

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"

(quotation and citation omitted). Picard, supra.

In their complaint, the plaintiffs here claimed

aggrievement due to the project based on (1) expected increases

in traffic and traffic congestion on Waldingfield Road at

certain intersections, (2) increased safety risks for plaintiffs

who require the use of Waldingfield Road to access their

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driveways, and (3) "adverse traffic impacts" on pedestrians,

cyclists, and equestrians on Waldingfield Road.4

With respect to the plaintiffs' concerns, Ora worked with

GPI, an engineering firm that submitted a traffic impact study

and a supplemental traffic memorandum. In these documents, GPI

concluded that the project would have a "negligible impact" on

the relevant intersections on Waldingfield Road, and that "there

will be adequate capacity to accommodate the anticipated traffic

volumes." According to an affidavit submitted by GPI engineer

Heather Monticup, these facts were reiterated by the town's peer

reviewing engineer, who stated during a board meeting that

Waldingfield Road was "designed historically to handle at least

[as] much traffic" as would be produced by the Ora project.

Further, Ora subsequently submitted a residential driveway

analysis,5 which showed that the effect of the project on the

4 The plaintiffs also claimed they were aggrieved based on
density concerns. On appeal, they have not challenged the
judge's finding that they failed to put forth sufficient
evidence to confer standing based on the density concerns,
however.

5 The plaintiffs claim that the driveway analysis is
irrelevant because hypothetical driveways were analyzed instead
of the plaintiffs' actual driveways. This claim, however, is
negated by Monticup's assertion that the hypothetical driveways
were chosen to be "representative of all homes along
Waldingfield Road," including those located on the plaintiffs'
properties.

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plaintiffs' abilities to access their driveways would be

negligible and, according to Monticup, "likely imperceptible."

Overall, the evidence showed that although residents could

expect a 30.6% increase in traffic on Waldingfield Road, this

amounted to a "de minimis" impact. Given this well-supported

conclusion, the judge did not err in finding that the

plaintiffs' traffic concerns, as well as their safety concerns

related the negligible increase in traffic, were thus rebutted

by Ora.6 Ultimately, Ora successfully put forth evidence that

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

aggrievement." 81 Spooner Rd., LLC., 461 Mass. at 701.

The plaintiffs also claim error in the judge's decision to

address the plaintiffs' traffic and safety interests together

6 The plaintiffs' claim that Ora failed to rebut their
traffic and safety concerns related to nonautomotive uses is
likewise unpersuasive. As discussed, Ora's evidence showed that
Waldingfield Road would not be overly congested and could
adequately accommodate the de minimis increase in traffic caused
by the project. Thus, any safety concerns based on an increase
in vehicles on the road, whether related to other drivers or
those using the road in nonautomotive ways, are speculative and
contrary to the expert evidence presented. Furthermore, even if
we were to give the plaintiffs the benefit of the argument as it
relates to nonautomotive uses, "standing may be rebutted by
demonstrating the insufficiency of the evidence upon which it
rests." Murchison v. Zoning Bd. of Appeals of Sherborn, 485
Mass. 209, 214-215 (2020). This includes a determination that
"[t]he evidence did not demonstrate harm particular to the
plaintiffs, different from general concerns shared by the rest
of the neighborhood." Id. at 215. As will be discussed infra,
the judge did not err in concluding that the plaintiffs failed
to show how their safety concerns differed from those of the
rest of the community.

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because, as the court determined, "the two interests are so

closely intertwined." We discern no such error. It is clear

from the plaintiffs' complaint and the evidence submitted in

support of their claims of aggrievement that they were concerned

with the safety impacts of the project only insofar as the

increase in traffic congestion would affect the safety of

Waldingfield Road for drivers, pedestrians, cyclists, and

equestrians. Compare Denneny v. Zoning Bd. of Appeals of

Seekonk, 59 Mass. App. Ct. 208, 210, 212-213 (2003) (statutory

abutter claimed safety interest where she alleged structural

integrity of proposed tower created hazard to residents). Given

that these interests are so closely intertwined, there was no

error in addressing the traffic and safety concerns together.

3. Credible evidence of specialized injury. We are not

persuaded that, as the plaintiffs next argue, the judge erred in

finding that the plaintiffs failed to proffer credible evidence

of aggrievement. Where a plaintiff is not presumed to have

standing (because the presumption of standing does not apply or

their presumed standing has been rebutted), "the burden rests

with the plaintiff to prove standing [i.e., aggrievement], which

requires that the plaintiff 'establish -- by direct facts and

not by speculative personal opinion -- that his injury is

special and different from the concerns of the rest of the

community.'" Kenner v. Zoning Bd. of Appeals of Chatham, 459

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Mass. 115, 118 (2011), quoting Standerwick v. Zoning Bd. of

Appeals of Andover, 447 Mass. 20, 33 (2006). This standard has

both quantitative and qualitative components. See Butler v.

Waltham, 63 Mass. App. Ct. 435, 441 (2005). "Quantitively, the

evidence must provide specific factual support for each of the

claims of particularized injury the plaintiff has made." Id.,

citing Marashlian, 421 Mass. at 724. "Qualitatively, the

evidence must be of a type on which a reasonable person could

rely to conclude that the claimed injury likely will flow from

the board's action." Butler, supra. Ultimately, "[s]peculation

and conjecture are not evidence, and in any event, more than a

'minimal or slightly appreciable' harm is required." Murchison

v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209, 215 (2020).

In an attempt to present credible evidence of their claims

of aggrievement, each plaintiff in the present case offered an

affidavit. In their affidavits, the plaintiffs generally and in

a conclusory way stated that, due to the Ora project, the

traffic conditions on Waldingfield Road will worsen and,

consequently, there will be a high risk of harm to them when

using the road. These predictions, however, lack factual

support and run contrary to Ora's credible evidence discussed

above. With specific respect to the affidavit of Geoffrey

Noyes, the trustee of the Sunswick Realty Trust that owns the

Tioga Pony Farm on Waldingfield Road, Noyes's speculation

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regarding an increased difficulty accessing his property is

contradicted by Ora's expert traffic studies, including the

driveway analysis. Furthermore, Noyes's concern about riding

horses on Waldingfield Road fails to show an adverse effect

related to the use of his property, and instead represents a

generalized concern that any individual (including any

equestrian in the community) using the road would have. See

Michaels v. Zoning Bd. of Appeals of Wakefield, 71 Mass. App.

Ct. 449, 451 (2008). The Noyes affidavit, like those of the

other plaintiffs, thus failed to show a nonspeculative,

particularized harm that is more than "minimal or slightly

appreciable." Murchison, 485 Mass. at 215.

Moreover, we see no error or abuse of discretion in the

judge's determination that William J. Scully's affidavit and

Professor Robert D. Yaro's letters were insufficient to bolster

the plaintiffs' speculative claims. Although Scully is a

qualified transportation engineer, he did not state that he

conducted any of his own research, nor did he submit any traffic

impact study or sight distance evaluation of his own. Scully's

opinion was based on, inter alia, an "overcount[ing] [of] the

number of proposed employees" at the site, and his opinion that

Ora's experts could have used different codes in their

calculations. This, however, does not represent adequate

criticism of Ora's evidence. Similarly, we see no error in the

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judge's rejection of Scully's contention that Ora used incorrect

standards in its sight distance evaluation where Ora's expert

analysis was, according to Monticup, performed in accordance

with industry standards.

Likewise, as the judge noted, Yaro does have town planning

experience, but he is not a qualified transportation engineer,

and he did not conduct any of his own traffic studies. His

concerns about increased speed on Waldingfield Road are

conclusory and speculative, and, along with his claims about the

change in physical characteristics of the rural roadway and

potential increase in traffic noise, fail to form a claim of

aggrievement on behalf of the plaintiffs that is substantially

different from other members of the community. See Michaels, 71

Mass. App. Ct. at 451 ("assertions of stigma and change in

neighborhood character . . . [amount] to little more than the

kind of undifferentiated fear and apprehension that is

insufficient to confer standing").

Overall, the plaintiffs have failed to show error in the

judge's determination that their concerns, including those

related to traffic and safety, are no different from the

concerns of the community as a whole. See Michaels, 71 Mass.

App. Ct. at 451 (no standing where, although project would

create "very slight incremental increase in the number of

vehicles" on road, plaintiffs failed to show that "there will be

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any problems of traffic volume increase that could possibly

affect the plaintiffs or their properties adversely"); Nickerson

v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680, 683-

684 (2002) (no standing where plaintiff's claims of aggrievement

were "not substantially different from [those] of all of the

other members of the community who [were] frustrated and

inconvenienced by heavy traffic"). Cf. Harvard Sq. Defense

Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491,

492-493 (1989) (plaintiff can acquire standing by "asserting a

plausible claim of a definite violation of a private right, a

private property interest, or a private legal interest").

Simply put, the evidence presented by the plaintiffs was

speculative, generalized, and failed to show "more than a

'minimal or slightly appreciable' harm." Murchison, 485 Mass.

at 215. Accordingly, there is no reason to disturb the judge's

finding that the plaintiffs failed to come forward with credible

evidence to substantiate their allegations of particularized

harm.

4. Standing based on diminution in property value.

Lastly, the plaintiffs argue that the judge erred in concluding

that the plaintiffs could not rely on diminution in property

value to confer standing. We disagree.

"It is well established . . . that diminution in [property]

value itself is not an interest protected under G. L. c. 40A."

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Murchison, 485 Mass. at 216, citing Kenner, 459 Mass. at 123.

Accordingly, "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."'" Pobeda RT II, LLC v. Zoning Bd. of Appeals of

Watertown, 104 Mass. App. Ct. 250, 252 (2024), quoting Kenner,

supra.

As in Pobeda RT II, LLC, 104 Mass. App. Ct. at 253, the

plaintiffs in the present case rely on language in the general

purpose section of the Ipswich bylaw ("to conserve the value of

land and buildings") in an attempt to "create the necessary link

between" the zoning ordinance and property value. However, as

we held in Pobeda RT II, LLC, supra, "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,'" quoting McCaffrey v. Board of Appeals

of Ipswich, 4 Mass. App. Ct. 109, 112 (1976). In reading the

entirety of the purpose section of the Ipswich bylaw,7 insofar as

the bylaw seeks to conserve property value, "it does not do so

to protect individual economic interests, but instead to serve

7 It should be noted that the purpose section of the more
specific GEPD bylaw, under which Ora was granted its special
permit and site plan approval, does not mention the conservation
of the value of buildings.

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the broader objectives of promoting public safety and health."

Pobeda RT II, LLC, supra.

Even if the plaintiffs' diminution in value claims are

derivative of or tethered to their traffic and safety concerns,8

however, given our conclusion that the judge did not err in

finding that the plaintiffs failed to come forward with

credible, nonspeculative evidence related to those concerns,

there can be no error in the judge's holding that the plaintiffs

8 Notably, some of the plaintiffs' diminution in value
claims are based not on increased traffic or safety concerns,
but, more generally, on the supposed change in character of the
rural area in which the plaintiffs originally purchased their
properties. That was not pleaded in the complaint, however, and
the idea that the plaintiffs' properties will diminish in value
because the commercial nature of the project will discourage
buyers is speculative and unsupported by the record. See
Butler, 63 Mass. App. Ct. at 441 ("Qualitatively, the evidence
[used to demonstrate one's specialized injury] must be of a type
on which a reasonable person could rely to conclude that the
claimed injury likely will flow from the board's action.
Conjecture, personal opinion, and hypothesis are therefore
insufficient").

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failed to show they were aggrieved persons on the basis of

diminution in property value.

Judgment affirmed.

By the Court (Singh, Hand &
D'Angelo, JJ.9),

Clerk

Entered: October 22, 2024.

9 The panelists are listed in order of seniority.

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