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17-P-430                                                 Appeals Court

         CLAUDIA MURROW    vs.    ESH CIRCUS ARTS, LLC, & others.1


                                 No. 17-P-430.

             Suffolk.       March 7, 2018. - May 17, 2018.

                Present:    Meade, Rubin, & Neyman, JJ.


Zoning, Appeal, Person aggrieved, Board of appeals: notice of
     hearing. Practice, Civil, Zoning appeal, Standing, Motion
     to dismiss. Notice.



     Civil action commenced in the Land Court Department on
December 3, 2015.

     A motion to dismiss was heard by Gordon H. Piper, J.


     Michael S. Rabieh for the plaintiff.
     Edward J. Lonergan for Esh Circus Arts, LLC, & others.


     MEADE, J.    Following the approval by the zoning board of

appeals of Somerville (ZBA) of a modification of a special

permit submitted by Esh Circus Arts, LLC, Ellen Waylonis, and

Belam II, LLC, the property owner (collectively Esh unless


     1 Ellen Waylonis; Belam II, LLC; Francis Galasso; Jonah
Jacob; and zoning board of appeals of Somerville.
                                                                      2


otherwise noted), Claudia Murrow appealed the approval to the

Land Court, where a judge dismissed Murrow's complaint due to

her lack of standing.    Judgment entered and Murrow appeals.    We

affirm.

    1.    Background.   Esh operates a "for-profit [circus] school

for instruction in arts, skills, or vocational training" in

Somerville.   Esh held a special permit that the ZBA previously

granted in an earlier case.     On September 30, 2015, Esh applied

for what appears to be a modification to that special permit

from the ZBA, seeking to increase the floor area and alter the

site plan.    Notice of the application and the public hearing

"was given to persons affected and was published and posted, all

as required by G. L. c. 40A, § 11, and the Somerville Zoning

Ordinance," as noted in the ZBA decision.     After a public

hearing, on November 4, 2015, the ZBA unanimously voted to

approve Esh's application.     The decision was filed with the city

clerk on November 13, 2015.

    Murrow received notice of the ZBA decision and filed a

complaint in the Land Court on December 3, 2015.     She alleged,

among other things, that Esh's proposed changes would cause a

detrimental health, safety, and welfare effect on Murrow and

Esh's surrounding neighbors.     Waylonis filed a motion to dismiss

Murrow's complaint on July 8, 2016, arguing that Murrow was not

an aggrieved party and therefore lacked standing.     The parties
                                                                     3


filed an excerpt of the Somerville Zoning Code and a list of

abutters for the judge's consideration.     Following a hearing,

the judge allowed the motion to dismiss on August 26, 2016,

finding that Murrow was not a party in interest entitled to a

rebuttable presumption of aggrievement, and that her complaint

failed to state facts that would establish her standing to

appeal the ZBA's decision.

    2.   Discussion.   We review the allowance of a motion to

dismiss de novo, accepting the allegations in the complaint as

true and drawing all reasonable inferences in favor of the

plaintiff.   See Curtis v. Herb Chambers I-95, Inc., 458 Mass.

674, 676 (2011).   In order to withstand a motion to dismiss, the

complaint must include factual allegations sufficient "to raise

a right to relief above the speculative level."     Iannacchino v.

Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

    a.   Rebuttable presumption of aggrievement.     Murrow claims

that the judge erred in finding that Murrow lacked a rebuttable

presumption of aggrievement as a "party in interest" under G. L.

c. 40A, § 11.   We disagree.

    To have standing to challenge the decision of a municipal

zoning authority, a plaintiff must be a person aggrieved.     G. L.

c. 40A, § 17.   See Marinelli v. Board of Appeals of Stoughton,

440 Mass. 255, 257 (2003).     Aggrieved person status is
                                                                     4


jurisdictional.   Denneny v. Zoning Bd. of Appeals of Seekonk, 59

Mass. App. Ct. 208, 211 (2003), citing Barvenik v. Aldermen of

Newton, 33 Mass. App. Ct. 129, 131 (1992).    Demonstrating

aggrievement requires a plaintiff to show she has suffered a

specialized, cognizable injury "not merely reflective of the

concerns of the community."    Denneny, supra at 211-212, citing

Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge,

27 Mass. App. Ct. 491, 492-493 (1989).    A plaintiff is entitled

to a rebuttable presumption of aggrievement if she is a "party

in interest" under § 11.2   Id. at 212.   As defined there, "party

in interest" refers to "the petitioner, 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. L. c. 40A, § 11.   By § 11's

strict terms, Murrow -- who lives across the street from, but

not directly opposite, Esh's property -- is not, and does not

allege to be, the petitioner, an abutter, or the owner of land

directly across from Esh's property.


     2 This rebuttable presumption originated in Marotta v. Board
of Appeals of Revere, 336 Mass. 199, 204 (1957), based on the
principle "that those entitled to notice of the proceedings are
presumed to have the requisite interest" for standing purposes.
Standerwick v. Zoning Bd. of Appeals, 447 Mass. 20, 33 (2006).
Property owners entitled to notice are those defined in the
third sentence of § 11. Watros v. Greater Lynn Mental Health &
Retardation Assn., 421 Mass. 106, 110-111 (1995).
                                                                     5


    However, Murrow does claim that she is a party in interest

as one of the "abutters to the abutters within three hundred

feet" because she lives within three hundred feet of the Esh

property.   We disagree.   When interpreting a statute, "each

clause or phrase is to be construed with reference to every

other clause or phrase without giving undue emphasis to any one

group of words."     Worcester v. College Hill Properties LLC, 465

Mass. 134, 139 (2013), quoting from Selectmen of Topsfield v.

State Racing Commn., 324 Mass. 309, 312-313 (1949).     The phrase

"within three hundred feet" modifies "abutters to the abutters"

and does not create a standalone category of parties in

interest.   To read § 11 otherwise would "render [a] portion of

it meaningless," Adamowicz v. Ipswich, 395 Mass. 757, 760

(1985), which we decline to do.

    Murrow also claims she has standing pursuant to the fourth

sentence of G. L. c. 40A, § 11, which states that "[t]he

assessors maintaining any applicable tax list shall certify to

the . . . special permit granting authority the names and

addresses of parties in interest[,]" which "shall be conclusive

for all purposes."    Ibid.   Murrow claims that, because she

received notice of the public hearing and of the ZBA's decision,

presumably by virtue of her appearance on a certified abutters

list, she qualifies for the rebuttable presumption, even if she
                                                                        6


does not meet the definition in the third sentence of § 11.        As

a plain reading of § 11 belies Murrow's claim, we disagree.

    As previously explained, the third sentence of § 11

provides a limited definition of "parties in interest" to be

used throughout G. L. c. 40A.    In particular, it states that

more remote abutters, i.e., abutters to abutters within three

hundred feet, are considered parties in interest "as they appear

on the most recent applicable tax list."     As discussed above,

Murrow does not qualify as a party in interest under this

provision.   The fourth sentence of § 11 provides that tax

assessors "shall certify . . . the names and addresses of

parties in interest," which is a reference to the definition of

parties in interest expressed in the previous sentence.      It does

not expand the earlier definition, nor does it empower the tax

assessor to identify individuals as parties in interest who do

not meet the limited statutory definition.

    In addition, this provision states that the tax assessor's

certification of parties in interest "shall be conclusive for

all purposes."   In light of the limited scope of the assessor's

certification in the context of the notice requirement of § 11,

we do not interpret "for all purposes" to mean that the tax list

creates new parties in interest.    To do so would nullify the

clear and unambiguous definition set forth in the previous

sentence.    Furthermore, such an interpretation would ignore much
                                                                   7


of the standing jurisprudence related to G. L. c. 40A, §§ 8,3 11,

and 17.4   See Chongris v. Bd. of Appeals of Andover, 17 Mass.

App. Ct. 999, 1000 (1984), citing Turner v. Bd. of Appeals of

Milton, 305 Mass. 189, 192-193 (1940).   Rather, the tax list

identifies and certifies owners of relevant properties, a subset

of which may fit within the narrow confines of the "parties in

interest" definition, and that certification of ownership shall

be conclusive.   Put another way, although the list may contain

individuals who do not qualify as "parties in interest" under

the statutory definition, such as Murrow, the assessor's

certification is conclusive as to who owns what parcel for the

purposes of the notice requirement; it is not an unassailable

list of parties with standing.5




     3 This section permits "any person aggrieved by reason of
his inability to obtain a permit or enforcement action" to
maintain an appeal to the permit granting authority.

     4 This section allows a "person aggrieved" to seek judicial
review of a decision, or failure to take final action, by the
board of appeals or special permit granting authority.

     5 Additionally, the Somerville Zoning Code permits the ZBA
to provide notice to parties described in § 11 as well as "other
owners as may be deemed by the Board of Appeals to be
interested." Notice provided to parties the ZBA deems
interested in addition to those statutorily required to receive
notice does not alter the statutory requirement and is not
conclusive for standing purposes.
                                                                     8


     Taking the facts in the complaint in the light most

favorable to Murrow, her name appears on two abutter's lists,6

and she received a notice of the public hearing and of the ZBA's

ultimate decision.     This does not entitle her to the rebuttable

presumption afforded parties in interest under the statute.

Were we to adopt Murrow's reasoning and find otherwise, tax

assessors would be empowered to confer standing on parties who

are otherwise not identified in § 11 as parties in interest.        We

decline to create such an impracticable result.

     b.     Burden to plead aggrievement.   Finally, Murrow claims

that the judge improperly placed on her the burden to plead that

she is aggrieved by Esh's application for special permit.      We

disagree.

     Murrow properly observes that if a plaintiff qualifies for

the rebuttable presumption of "standing as an aggrieved person,

a defendant must offer evidence warranting a finding contrary to




     6 We note that, in our review of the record, these list
excerpts appear unadorned, lacking any identifiable insignia or
indicia as to their sources. One is labelled "Abutting
Properties for [Esh's property] (300 feet)" and contains a
handwritten notation: "[Esh] Abutters for ZBA 2015-89," the
docket number for Esh's special permit case. The other contains
a notation of "[Esh] Abutters for ZBA 2013-62," the docket
number for Esh's earlier special permit case. Furthermore, as
the judge found, these lists "[do] not have the certification of
the tax assessor, and therefore [do] not fit the statutory
definition of a" certified list. In light of our statutory
discussion, we need not reach the issue of whether the list was
actually certified.
                                                                     9


the presumed fact."   Marinelli, 440 Mass. at 258.    However, as

here, when a plaintiff fails to meet the "party in interest"

designation, she may nevertheless have standing if she is a

person aggrieved, in other words, if the "permit causes, or

threatens with reasonable likelihood, a tangible and

particularized injury to a private property or legal interest

protected by zoning law."   Standerwick v. Zoning Bd. of Appeals

of Andover, 64 Mass. App. Ct. 337, 340 (2005), S.C. 447 Mass. 20

(2006), citing Marashlian v. Zoning Bd. of Appeals of

Newburyport, 421 Mass. 719, 723 (1996).   But it is always a

plaintiff's burden to demonstrate her aggrievement.    Standerwick

v. Zoning Bd. of Appeals, 447 Mass. at 34-35 n.20.

    Here, the judge did not err in dismissing Murrow's

complaint for lack of standing.   Because Murrow does not qualify

as a party in interest and is not entitled to the presumption,

the burden remained on her to put forth credible facts of her

specialized injury.   Despite having the opportunity to do so at

the hearing, Murrow chose to rely on the bald allegations in her

complaint, which fail to set forth a particularized injury

caused by Esh's proposed expansion.   Instead, Murrow claims

personal damages in only two paragraphs of her factual

allegations, where she generally alleged that Esh's

"recreational use" and "proposed increase in size and occupancy"

would be "detrimental to Murrow and the neighborhood by
                                                                    10


increasing the potential for overcrowding and undue

concentration of population, discouraging housing for persons of

all income levels, enhancing danger from fire, diminishing the

value of surrounding properties, and adding to noise, light,

traffic, loss of privacy, and trespass."

    This conclusory statement, unadorned with particularized

details, is insufficient to establish aggrievement.    See

Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct.

680, 683 (2002) ("While the plaintiff undoubtedly is

inconvenienced by the heavy traffic . . . this evidence is an

insufficient predicate for finding that he is a 'person

aggrieved'").   Compare Marashlian, supra at 723 (standing found

where defendant's hotel project would likely increase traffic

and eliminate some public parking, upon which plaintiffs relied

for "business and personal needs"); Bertrand v. Board of Appeals

of Bourne, 58 Mass. App. Ct. 912, 912 (2003) (finding standing

existed where plaintiff alleged environmental impacts of the

septic system, increase in artificial light and noise, and

decrease in privacy resulting from defendant building two houses

directly behind the plaintiff's house).    Therefore, contrary to

Murrow's claim, the judge did not err in finding that Murrow had

the burden to show an "alleged injury" that was "special and

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

failed to do so.   Compare Boston Edison Co. v. Boston Redev.
                                                                 11


Authy., 374 Mass. 37, 46 (1977) (Boston Edison has standing as a

"person aggrieved" where its loss is "direct, substantial, and

ascertainable").

    c.   Esh's demand for costs, damages, and attorney's fees.

Although Murrow has failed to persuade us that the judge erred

in dismissing her claims, sanctions are not warranted as this

appeal is neither frivolous nor was it initiated in bad faith.

See Avery v. Steele, 414 Mass. 450, 455 (1993).   We therefore

decline to exercise our discretion to award attorney's fees,

costs, and damages.   See Masterpiece Kitchen & Bath, Inc. v.

Gordon, 425 Mass. 325, 330 (1997).

                                     Judgment affirmed.
    RUBIN, J., concurring.    This case involves an important

question that has vexed the judges of the trial court, who have

reached different conclusions about it.   I join the court's

opinion, but add a few words since the statute says the

assessors' certified list of "the names and addresses of parties

in interest" shall be "conclusive for all purposes," and, at

least at first blush, it may look like we are holding it is not

conclusive for at least one purpose, the rebuttable presumption

of standing given by our courts to those defined by the statute

as "parties in interest."    See G. L. c. 40A, § 11.

    The question of standing involves a construction of who is

a "person aggrieved" under G. L. c. 40A, § 17.    While some

"parties in interest" may also be "person[s] aggrieved," and

vice versa, the concepts are different.   See, e.g., Denneny v.

Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208, 212-213

(2003) (plaintiff was an abutter to an abutter within three

hundred feet of the petitioner's property line, and thus a

"party in interest," but was not a "person aggrieved" by the

board's decision).

    The prior version of what is now G. L. c. 40A, § 11,

provided that,

    "The board of appeals shall fix a reasonable time for the
    hearing of any appeal or other matter referred to it or any
    petition for a variance, and give public notice thereof in
    an official publication, or a newspaper of general
    circulation, in the city or town, and also send notice by
                                                                     2


    mail, postage prepaid, to the petitioner and to the owners
    of all property deemed by the board to be affected thereby,
    as they appear on the most recent local tax list, and to
    the planning board of such city or town." G. L. c. 40A,
    § 17, as appearing in St. 1954, c. 368, § 2.1

    In Marotta v. Board of Appeals of Revere, 336 Mass. 199

(1957), the Supreme Judicial Court held "that there is a

presumption that property owners to whom the board in the

performance of its statutory obligation has sent notice as

persons 'deemed by the board to be affected thereby' have an

interest and are persons aggrieved.    'It ordinarily must be

presumed that such determination of landowners likely to be

affected will be made in good faith and exclude none fairly

within the scope of the statute.'     Godfrey v. Building

Commissioner of Boston, 263 Mass. 589, 591 [1928]."     Id. at 204

(footnote omitted).   Of the rebuttable presumption of standing

it articulated, the court also said that "it is a rule of reason

which, in the absence of direct evidence on the issue, will hold

the board to the implications of its own determination and carry

the appealing parties over the jurisdictional threshold."       Ibid.

    Apparently concerned about the discretion given the zoning

boards of appeals to determine under this section who would




    1  When the Zoning Act underwent its last major
recodification in 1975, the sections were renumbered. See St.
1975, c. 808, § 3. The current section 11 corresponds to
section 17 from the 1954 codification, and the current section
17 corresponds to the prior section 21.
                                                                       3


receive notice, the Legislature in 1975 amended it.      Rather than

leaving the determination of who should get notice to the

judgment of the ZBAs, it created the previously unknown legal

category, "parties in interest:"    As originally enacted, the

statute said "'[p]arties in interest' as used in this chapter

shall mean the petitioner, abutters, owners of land directly

opposite on any public or private street or way and owners of

land within three hundred feet of the property line all as they

appear on the most recent applicable tax list, notwithstanding

that the land of any such owner is located in another city or

town, the planning board of the city or town, and, the planning

board of every abutting [city or town]."    G. L. c. 40A, § 11, as

appearing in St. 1975, c. 808, § 3.    Under this definition,

Murrow would have been a party in interest.    The statute was

further amended, however, in 1979 to partially narrow "parties

in interest," so that instead of including all "owners within

three hundred feet of the property line" it now includes only

"abutters of the abutters within three hundred feet of the

property line of the petitioner."    St. 1979, c. 117.    Parties in

interest, as defined by the statute, are entitled to notice.

See G. L. c. 40A, §§ 9, 9A, 10, 11, 15, 16.

    The 1975 amendment also added the language at issue in this

case, providing, "[t]he assessors maintaining any applicable tax

list shall certify to the permit granting authority or special
                                                                     4


permit granting authority the names and addresses of parties in

interest and such certification shall be conclusive for all

purposes."     While ultimately we need not decide the issue in

this case, I note that it is not clear with respect to what

"such certification" is supposed to be conclusive.     Perhaps it

is conclusive with respect to "the names and addresses" of

parties in interest, and if a person within the statutory

definition is missing from the list, he or she can nonetheless

be notified.     Perhaps it is supposed to be conclusive only for

all purposes of the authority to which the certification is

made.   Or perhaps, as Ms. Murrow argues, it is supposed to be

conclusive as to what owners meet the statutory definition,

providing a conclusive list identifying the names and addresses

of "parties in interest."

    Even assuming the latter is the case, however, ultimately

we are not concerned here with who are deemed "parties in

interest."     We are concerned with who is entitled to the

rebuttable presumption of standing.     The statute does not say

that "parties in interest" are to be given a presumption that

they are "persons aggrieved."     If it did, perhaps the certified

list would control for that purpose, though, again, we need not

resolve that question.

    The presumption of standing articulated in Marotta was a

judicial creation, and, in the absence of legislation, its scope
                                                                    5


must be judicially determined.   It actually originated both out

of deference to the statutorily mandated determinations of the

zoning appeals boards and as a means of holding those boards to

their determinations as to which property owners were "affected"

by their decisions:   if a board determined that a property owner

would be affected by its decision, as evidenced by its notifying

the property owner, that property owner's appeal would be

"carr[ied] . . . over the jurisdictional threshold" unless there

was "direct evidence on the issue."   Marotta, 336 Mass. at 204.

    Marotta itself of course does not address the significance

of being a "party in interest" -- a concept the Legislature did

not adopt until almost twenty years after that decision -– and

so the use of that designation to create a presumption of

standing cannot have been one of the "purposes" contemplated by

the Legislature in 1975.   Rather, appellate cases decided after

the 1975 amendments to the statute have given a judge-made

rebuttable presumption of standing to this newly-defined

category.   They have done so by citation to Marotta, and without

any explicit analysis of why the rebuttable presumption,

originally given to those deemed by the board to be affected,

should be given to statutorily described "parties in interest."

See, e.g., Watros v. Greater Lynn Mental Health & Retardation

Assn., Inc., 421 Mass. 106, 111 (1995); Marashlian v. Zoning Bd.

of Appeals of Newburyport, 421 Mass. 719, 721 (1996); 81 Spooner
                                                                    6


Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692,

700 (2012); Valcourt v. Zoning Bd. of Appeals of Swansea, 48

Mass. App. Ct. 124, 127-128 (1999); Choate v. Zoning Bd. of

Appeals of Mashpee, 67 Mass. App. Ct. 376, 381 (2006).

    In my view, however, the reason our courts provide this

rebuttable presumption is clear:   it is not because the parties

have been given notice, which is what the legislature has

required be provided to "parties in interest," or because they

have been deemed "parties in interest," whether by a tax

assessor, a zoning board of appeals, or anyone else.   It is

because they meet the definition of "parties in interest" set

out by the Legislature.   I believe our cases and those of the

Supreme Judicial Court are best understood to reflect a

conclusion that, if the Legislature believes those individuals

and entities are entitled to notice, they are also entitled to a

rebuttable presumption of standing.   Cf. Standerwick v. Zoning

Bd. of Appeals of Andover, 447 Mass. 20, 33 (2006) (presumption

of standing exists because "those entitled to notice of the

proceedings are presumed to have the requisite interest").

    I would not expand the category of those who are entitled

to the presumption of standing to include those outside the

definition who happen to be on a tax assessors' certified list,

nor would I contract it to exclude any of those within the

definition who are left off such a list.   Whether someone within
                                                                  7


the definition has been left off the certified list, or, as

here, someone not within the definition has been added, or,

indeed, whether or not the certified name or address is wrong, I

believe those actually within the definition are the ones

entitled to the judicially-created rebuttable presumption of

standing and, consequently, that a court must independently

determine whether a party meets the definition.   Consequently,

even if the tax assessors' certified list amounts to a

conclusive determination of who are the "parties in interest"

that must receive notice, that list is ultimately irrelevant to

the determination the court must make of which parties are

entitled under the case law to the rebuttable presumption they

are "persons aggrieved."   Ms. Murrow is not entitled to that

presumption; someone in her circumstance might nonetheless be a

"person aggrieved," but the burden was on her to demonstrate

that fact, and, since she failed to do so, the judgment must be

affirmed.
