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44 237 I LeryourshiqONweALTE OF MASSACHUSETTS CLERK MAGISTRATE HAMPSHIRE, ss. SUPERIOR COURT CIVIL ACTION NO. 14-237 JOEL GREENBAUM vs. ARCHIPELAGO INVESTMENTS LLC & others’ MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ TIONS FOR SUMMARY JUDGMENT AND DEFENDANT ARCHIPELAGO’S MO! TO STRIKE ‘The plaintiff, Joel Greenbaum (“Greenbaum”), filed a complaint against Archipelago Investments LLC (“the developer”), the Planning Board of Amherst and the members of the Planning Boerd of Amherst (collectively “the Board”) appealing the decision allowing the developer’s request for special permits. The developer and the Board each filed a motion for summary judgment, arguing that Greenbaum lacked standing, pursuant to G. L. ¢. 40, § 17. Additionally, the developer filed a motion to strike the Affidavit of Rolf Karlstrom. For the following reasons, the defendants’ motions for summary judgment and Archipelago lavestments LLC's motion to stike will be allowed. BACKGROUND The summary judgment zecord reveals the following undisputed material facts: ‘The developer owns an equitable interest in the property located at One East Pleasant Street in Amherst (“the property”). The property contains 35,375 square feet and is located both in the B-G General Business zoning district and the Municipal Parking District * Planning Board of Amberst, and David Webber, Richard T. Romoy, Sandre Anderson, Brace Carson, Stephen Senreiber, Greg Stutsman, Robert Crowzer, end Cristina Calabresse in their official capacity 2s members ofthe Plenning Board. ‘On December 4, 2014, the Board granted two special permits. On February 5, 2015, the Board granted site plan approval to the developer for the construction of mixed use building that will contain eighty-four dwelling units, 7,800 square feet of nonresidential space, and thirty-six parking spaces (“the project”). Specifically, the special permits granted, (1) relief from the applicable height requirement of fifty-five feet and authorized the project to be sixty feet in height, and (2) relief ftom the applicable setback requirement of twenty feet on the project's south and east sides, thus allowing the project to be closer to the property lines on these sides. As a matter of right, the developer could, without any special permits, build a project fifty-five feet high with eighty-four dwelling units and thirty-six parking spaces “Without the special permit granting relief from the setback requirement, however, parking would be reduced to twenty-four spaces. Greenbaum, with his wife, owns properties located at 15-17 Hallock Street and 274 North Pleasant Street in Amberst (“the Greenbaum properties”), The Hallock Street property is 266.6 feet from the closest point of the property and the proposed project building would be 319.1 fect from the closest building at 15-17 Hallock Street, The North Pleasant Street property is 264.1 feet from the closest point of the property and the proposed project building would be 327.8 feet from the closest building at 274 North Pleasant Street, ‘The developer, using industry standards, provided a Shadow Study to see if the proposed project ‘would cast a shadow on the Greenbaum properties. The study showed that shadows would not be cast on the Greenbaum properties. DISCUSSION ‘The motion for summary judgment incorporates two preliminary matters, which must be decided prior to proceeding to the summery judgment action. The first is the developer's motion to strike the affidavit of Rolf Karlstrom. The second matter is whether the plaintiff is “a party in interest” L Motion to Strike In support of his opposition, Greenbaum submitted an affidavit of Rolf Karlstrom, a professor of biology at the University of Massachusetts, Amherst, which describes the parking situation in Amherst ‘The developer argues that this is an area that requires expert testimony and Karistrom is not qualified to offer an opinion on the matter of available parking in Amberst, Greenbaum argues that Karlstrom’s affidavit is based upon personal knowledge as an Amherst resident and by simple mathematical calculations, for which he is qualified as a biology professor, based upon readily available parking data, Affidavits supporting or opposing motions for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively ‘that the affient is competent to testify to the matters stated therein.” Mass, R. Civ. P, 56(e). Asa resident of Amherst, it is possible that Kerlstrom is aware of the overnight parking ban in town and that the town issues permits for Boltwood Garage. Indeed, this is information to which Karlstrom may testify during trial. See generally Somers v. Converged Access, Inc., 454 Mass. 582, $97 (2009) (evidence must be admissible at trial to consider during summary judgment); Mass, R. Civ. P. 56 (e) (‘affidavits ... shall set forth facts as would be admissible in evidence”). Any other facts contained in Karlstrom’s affidavit are outside of his personal knowledge and will be stricken from the record. See Madsen v. Erwin, 395 Mass. 715, 721 (1985) (citations omitted). Additionally, Karlstrom is not an expert authority on parking. While an expert is not always necessary, the area of city planning end providing adequate parking requires a highly technical and specialized knowledge, Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129, 137 n.13 (1992) (expert not required in zoning cases but can be helpful with technical questions regarding specialized matters, such as traffic). Karlstrom, as a biology professor and town resident, does not possess the knowledge necessary to evaluate city parking?” As such, any opinion in Karlstrom’s affidavit will be stricken from the record. Party in Interest For the purposes of G. L. ¢. 40A, a “party in interest” is defined as “the petitioner (seeking the special permit or variance], abutters, owners of land directly opposite on any public or private street or ‘way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list [.}” G. Lc. 40, § 11. A party in interest “has presumptive standing to appeal.” Denneny v. Zoning Board of Appeals of Seekonk, 59 Mass. App. Ct. 208, 212 (2003). Here, it is agreed that the map attached to Exhibit 7 accurately depicts the location of the Greenbaum properties to the developer's property. See Combined Statement of Facts, para. 28. ‘According to this map, the Greenbeum properties do not abut the property and are not located directly opposite the property, The Greenbaum properties are within 300 feet of the property, measured property line to property line and are abutters to abutters. The Greenbaum properties abut 256 North Pleasant Street and 264 North Pleasant Street. See exhibit B to Ex. 7. The properties et 256 North Pleasant Street and 264 North Pleasant Street are separated from the property by North Pleasant Street, East Pleasant Street, and Kendrick Park. See exhibit B to Ex. 7. Accordingly, Greenbaum is a “party in interest” and is entitled to a rebuttable presumption of standing for appeal. See 8! Spooner Road, LLC vy. Zoning Ba. Of Appeals of Brookline, 461 Mass. 692, 700 (2012). 2 As a town resident, Karlstrom may express 2 belief that parking in the area is inadequate based upon his own quest for parking it downtown Amberst, however, “a judge does not have to accept an assertion of belisf as an assertion of the truth...” Seren! v. Star Sportswear Mangacturing Corp.,24 Mass. App. Ct. 428, 433 (1987). 4 ‘IL Motions for Summary Judement Summary judgment is appropriate when the material facts are undisputed and “the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56 ©. To be successful, a party must either submit affirmative evidence that negates one or more elements of the other party’s claim or demonstrate that the opposing party has no reasonable expectation of proving an essential element of its case. Kourowacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts that “would establish the existence of a genuine issue of material fact.” Pederson v, Time, Inc., 404 Mass 14, 17 (1989). The opposing party cannot defeat the motion simply by resting on the pleadings and mere assertions that there are disputed facts, LaLonde v. Bisner, 405 Mass. 207, 209 (1989), and “[aJay doubts as to the existence of a genuine issue of material fact are to be resolved against the party moving for summary judgment.” Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6 (2008). In reviewing a motion for summary judgment, “the judge must consider the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any” but “may not consider the credibility of a witness or the weight of the evidence.” McGuinness v. Cotter, 412 Mass, 617, 620, 628 (1992). In order to challenge a planning board decision, the plaintiff must be “a person aggrieved,” meaning the plaintiff has “suffer[ed] some infringement of his legel rights.” Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719, 721 (1996). The status as an eggrieved person is a jurisdictional requirement for judicial review of the board’s decision. Monks v. Plymouth Zoning Board of Appeals, 37 Mass. App. Ct. 685, 687 (1994). While “a person aggrieved” should not be interpreted narrowly, the plaintiff's harm must be more than mere speculation. Marashlian, 421 Mass. at 721, Further, the aggrieved person must claim a personal injury or loss, and not “concems of the community.” Dermeny, 59 Mass, App. Ct. at 211 Hore, Greenbaum is presumed to be aggrieved as a “party in interest.” The presumption, however, is a rebuttable presumption that may be challenged by the defendant's offering of evidence. See 8) Spooner Road, LLC, 461 Mass. at 700. “In ¢ summary judgment context, a defendant is not required to present affirmative evidence that refutes a plaintiff's basis for standing.” Standerwick v. Andover Zoning Bd. Of Appeals, 447 Mass. 20, 35 (2006). Rather, a defendant need only show thet the plaintiff “‘has no reasonable expectation of proving’ a legally cognizable injury.” Id, quoting Kourouvacilis, 410 Mass. at 716. Furthermore, “[tJhe presumption of aggrievement conferred on abutters does not shift the burden of proof on standing, . . . The plaintiff always bears the burden of proving agerievement necessary to confer standing; an abutter’s presumption of standing simply places on the adverse party the initial burden of going forward with evidence.” 8 Spooner Road, LLC, 461 Mass. at 701 Greenbaum’s chief complaint is the inadequate parking available for the project. Greenbaum, as the owner of two private parking lots near the property, asserts that the parking in the area is already overburdened and that he will be forced to expend extra time and money clearing his lots of unauthorized vehicles once the project is completed. The defendants argue that Greenbaum has not shown how the granted variances will increase the parking and that parking, at least in that particular district, is not 2 protected right. Greenbaum fails to show how perking is a harm particular to him. In order to be an aggrieved person, the harm must be personal and not felt by the community at large. See Barveni, 33 Mass. App. Ct at 132 (“a plaintiff must establish—by direct facts end not by speculative personal opinion—that his injury is special and different from the concems of the rest of the community”). The summary judgment record reveals that parking in this area of Amherst is actually a community-wide concern. In fact, parking is such a concer that the Board plans to hold special hearings regarding this issue in the fall. See Ex. 7, para. 15, Accordingly, Greenbaum does not suffer a “special harm” and therefore is not an “aggrieved person” with standing to challenge the Board’s decision. However, assuming that Greenbaum can show that he, as the owner of private parking lots near the project, is harmed in a way that is unique compared to the community at large, Greenbaum must still show that he is aggrieved by the granting of the special permits and not by what the developer may build as a matter of ight, See Barvenik, 33 Mass. App. Ct, at 133 (plaintiff “must provide specific evidence demonstrating a reasonable likelihood that the granting of a special permit will result... in his property cr legal rights being more adversely affected by the activity authorized by the permit than ... they would be as a result of the uses and activities permitted as of right on the defendant's locus” ); cf. G. L.c. 404, § 17 (Any person agrrieved by a decision of... . any special permit granting authority” (emphasis added]). Here, the developer may build, as a matter of right, a building fifty-five feet in height. According to the special permit decision, the developer requested the height variance of five feet to accommodate commercial deliveries to the first floor and to allow for higher ceilings in the apartments. See Ex. 2. Without the variance, the developer still planned to build eighty-four apartments above ‘commercial tenants on the first floor. See Ex. 10, para. 13. Greenbaum has not shown how the special permit allowing an extra five feet in height is the cause of his claimed perking injury. The developer may also build, as a matter of right, a building with a setback of twenty feet on the castem end southern boundaries, The developer may construct eighty-four apartment units within the required setback as of right. See Ex. 10, para. 14. The special permit for the decrease in setback allows an increase in parking. See Ex. 10, para. 15 and attached exhibit D; Combined Statement of Facts, para. 45. Greenbaum has not shown how the special permit allowing a decrease in setback requirements is the cause of his claimed parking injury Furthermore, the project is located within the Municipal Parking District and is not required to provide packing, See Ex. 6, Town of Amherst Bylaws 2.04, 7.43; see also Combined Statement of Facts, para, 2, Consequently, as a legislative initiative, the town has decided that parking in this area may be sacrificed for development. See Ex. 7. ‘The developer is providing thirty-six parking spaces, when, as @ matter of right, the project may be completed without providing parking. Greenbaum fails to show how his claimed injury is a result of the special permits granted to the developer and not the Municipal Parking District itself? Barventf, 33 Mass. App. Ct. at 133; see also 81 Spooner Road, LLC, 461 Mass. at 702 (plaintiff “can have no reasonable expectation of proving 2 legally cognizable injury where the Zoning Act and related zoning ordinances or bylaws do not offer protection from the alleged harm in the first instance”). Greenbaum also argues that the project will change the nature of the community. ‘The developer, as a matter of right, can build e five-story, mixed use commercial and residential structure. Greenbaum, does not argue, and fails to offer any evidence, showing how increasing the height to sixty feet from fifty-five feet, which is allowed as a matter of right, or decreasing the setback requirement will change the nature of the community, Cf. Barvenik, 33 Mass, App. Ct, at132-133 (“Subjective and unspecific {ears about the possible impairment of aesthetics or neighborhood appearance, incompatible architectural styles, the diminishment of close neighborhood feeling, or the loss of open or natural space are all considered insufficient bases for aggrievement under Massachusetts law.”). While the project is large in scale, the proposed building is almost entirely within whet the bylaws permit the developer to build as'a matter of right. > The Karstrom Affidavit, if allowed, does not provide eny evidence showing that granting the special permit will cause Greenbaum's harm, ORDER For the foregoing reasons, it is therefore ORDERED that Defendants’ Motions for Summary Judgment are ALLOWED, and the Defendant Archipelago Investments LLC’s Motion to Stike is ALLOWED. Justice of the Superior nk Dated: August IP 2015

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