Decisions 4801 and 4802 Summary Judgment3 (_fc --I-?'ui )vV.
SUMMARY JUDGMENT Trial Court of Massachusetts
MASS.R.CIV.P.56 The Superior Court
DOCKET NUMBER
Scott W. Nickerson, Clerk of Court
1972CV00494
Barnstable County
CASE NAME COURT NAME&ADDRESS
Woods Realty Associates, LLC et al Barnstable County Superior Court
vs.
3195 Main StreetTownofYarmouthBoardofAppealsetal
Barnstable, MA 02630
JUDGMENT FOR THE FOLLOWING DEFENDANT(S)
Town of Yarmouth Board of Appeals
Colbea Enterprises, LLC RECEIVED
Luby, Jeanne L.
Luby-Drew, Karen J
MAY 18 2022StationAvenueLLC
YARMOUTH
JUDGMENT AGAINST THE FOLLOWINGPLAINTIFF(S) BOARD OF APPEALS
Woods Realty Associates, LLC
Woods Orthodontics, P.C.
This action came before the Court, Hon. Elaine M Buckley, presiding, upon Motion for Summary Judgment of the
named above, pursuant to Mass. R. Civ. P. 56. The parties having been heard, and/or the Court having
considered the pleadings and submissions,finds there is no genuine issue as to material fact and that the defendant is
entitled to a judgment as a matter of law.
It is ORDERED and ADJUDGED:
That the decision of the Town of Yarmouth Board of Appeals dated September 5, 2019, is AFFIRMED, and the complaint
of the plaintiffs'be and hereby is dismissed.
A true copy, ,
el 4 • „t .4 WV r •
k.ae
CL r k
DATE JUDGMENT ENTERED CLERK • COURTS/ ST.CLE '
f04/06/2022 X (,-i/(,_.
1 t
r
CL.0 Qwt/l.
DatefTime Printed: 04-06-2022 15 09.33
SCV061 03/2016
SUMMARY JUDGMENT
Trial Court of Massachusetts
MASS.R.CIV.P.56 The Superior Court
1 1
DOCKET NUMBER Scott W.Nickerson,Clerk of Court
1972CV00493
Bamstable County
CASE NAME COURT NAME&ADDRESS
Woods Realty Associates,LLC et al Bamstable County Superior Court
vs.
Yarmouth Zoning Board of Appeals et al
3195 Main Street
Barnstable,MA 02630
JUDGMENT FOR THE FOLLOWING DEFENDANT(S)
Yarmouth Zoning Board of Appeals
Luby,Jeanne L.
Luby-Drew,Karen J.
Station Avenue LLC
Colbea Enterprises,L.L.C.
JUDGMENT AGAINST THE FOLLOWING PLAINTIFF(S)
Woods Realty Associates,LLC
Woods Orthodontics,P.C.
This action came before the Court,Hon.Elaine M Buckley,presiding,upon Motion for Summary Judgment of the
named above,pursuant to Mass.R.Civ.P.56.The parties having been heard,and/or the Court having
considered the pleadings and submissions,finds there is no genuine issue as to material fact and that the defendant is
entitled to a judgment as a matter of law.
It is ORDERED and ADJUDGED.
That the decision of the Town of Yarmouth Board of Appeals dated September 5,2019,is AFFIRMED,and the complaint
of the plaintiffs'be and hereby is dismissed.
A true copy,Attest:
e•
rK
DATE JUDGMENT ENTERED CLE,5I(OF COJJRTS/ASB4.CLERK
04/06/2022 X tic 1 b l' /lift,tbk kfit4,n
Date/Time Printed:04-OS-2022 14:27:09 SCV061.03/2016
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE,ss. SUPERIOR COURT
CIVIL ACTION NOS,
1972CV493;1972CV494
WOODS REALTY ASSOCIATES,LLC&another'
vs.
TOWN OF YARMOUTH BOARD OF APPEALS,&others2
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT
This matter involves a variance granted by the Town of Yarmouth Zoning Board of
Appeals("ZBA")permitting the defendant,Colbea Enterprises("Colbea"),to construct a gas
station and convenience store in Yarmouth. Pursuant to G.L.c.40A,§17,the plaintiffs Woods
Realty Associates,LLC("Woods Realty")and Woods Orthodontics,P.C.("Woods
Orthodontics,"together with Woods Realty,"Woods"or"plaintiffs"),filed an appeal of the
ZBA's decision,alleging that the decision was contrary to the Town of Yarmouth Zoning
Bylaws and the provisions of G.L.c.40A.
In the instant motion,the defendants move for summary judgment,arguing the plaintiffs
lacked standing to contest the variance. For the following reasons,the defendants'Motions for
Summary Judgment are ALLOWED.
Woods Orthodontics,P.C.
2 Sean Igoe,Dick Martin,Tom Nickinello,and Richard Neitz,as they are members of the Town of Yarmouth Board
of Appeals,not individually;Town of Yarmouth Board of Appeals;Colbea Enterprises,LLC;Jeanne L.Luby;
Karen J.Luby-Drew;and Station Avenue,LLC.
BACKGROUND
The following facts are taken from the summary judgment record, with certain facts
reserved for the Discussion section below.
A. General Agreed Upon Facts
Woods Realty owns property located at 495 Station Avenue in Yarmouth ("Woods
Property"). Woods Orthodontics operates an orthodontic practice as a tenant at the Woods
Property. Dr.Warren D.Wood,D.M.D is an orthodontist at Woods Orthodontics("Dr.Woods").
Woods Orthodontics did not have a written lease with Woods Realty at the time this Complaint
was filed.
Defendants Jeanne L.Luby("Jeanne")3 and Karen J.Luby-Drew("Karen")own property
located at 473 and 479 Station Road in Yarmouth. Defendant Station Avenue,LLC ("Station
Avenue")owns property located at 487 Station Avenue in Yarmouth. Defendant Colbea sought
variances to construct a Shell gas station and Seasons Comer Market convenience store on
undeveloped land located at 473, 479, and 487 Station Avenue in Yarmouth (the "Proposed
Project"). The Woods Property abuts the intended location for the Proposed Project.
B. Ruling from the ZBA
Colbea submitted two applications for variances with the ZBA:Petition No.4801 and
4082. Collectively,Colbea sought a variance to divide the 487 Station Avenue property(owned
by Station Avenue)to convey approximately 7,305 square feet to the adjacent the 473-479 Station
Avenue property(owned by Jeanne and Karen)(the"Variance"). On September 5,2019,the ZBA
unanimously voted to grant the requested relief on both petitions(the"Decision"). The plaintiffs
Where Jeanne L.Luby shares,in part,a last name with Karen J.Luby-Drew,the court will refer to these parties by
their first names.
2
filed two complaints with this court on September 4,2019,seeking to appeal the ZBA's Decision
as to each of the 4801 and 4082 petitions.
C. Affidavits Submitted in Support of Motion for Summary Judgment
There are several affidavits included in the summary judgment record,which provide the
following information for this court's review pursuant to Mass.R.Civ.P.56.
1. Affidavit of Deborah Haskell
Deborah Haskell("Haskell")provided an affidavit in support of the defendants'Motions
for Summary Judgment. She is the Managing Partner of Winthrop Real Estate Advisors,located
in Cotuit. She has over twenty-five years of experience performing valuations of multiple property
types,including medical office buildings,as well as gas stations and convenience stores.
Haskell has formed the opinion that the Proposed Project is consistent with surrounding
commercial uses on Station Avenue. She notes that there is an existing Mobil gas station and
convenience store adjacent to the northern side of the plaintiffs'property. Further,she notes that
the Yarmouth Shopping Center is across the street from the plaintiffs'property. This shopping
center includes several retail and restaurant tenants. There is a second shopping center,Union
Station Plaza,which similarly includes multiple retail and restaurant tenants. Additionally,a drug
treatment center,offering methadone,suboxone,and subtext to patients,is located directly behind
the plaintiffs'property. The Yarmouth-Bamstable Regional Commercial Waste Transfer Station
and Management Facility is also located close to the plaintiffs'property.
Haskell states that the plaintiffs' property will not suffer any diminution of value or
damages from noise because it is already on a heavily travelled roadway adjacent to an existing
gas station and convenience store. Further,given the hours of operation at Woods Orthodontics,
7:30 a.m.through 6:00 p.m.,Haskell states that any ambient light from the Proposed Project would
3
be consistent with the surrounding commercial development. As to trespassing,she states that Dr.
Woods testified that there was preexisting problem with trespassers on the Woods Property,and
any concern about increased future trespassing is speculative. Given the absence of any evidence
to the contrary,Haskell states there is no diminution in value or increased problems with parking
at the Wood's Property. Haskell further states that the plaintiffs will not suffer any damages
stemming from visual character,as the Wood's Property is already located in a commercial zone
with the above-referenced gas station and shopping centers.
On this basis,she reached the opinion that:
Plaintiffs do not allege any unique injury that separates them from the general
public,including but not limited to allegations related to traffic,density,noise,
light,trespass,parking,visual character and quality impact and diminution of value
related to the PROPOSED PROJECT.
In my opinion,the plaintiffs'property will not sustain any adverse influence or
diminution of value or damages as a result of the development of the PROPOSED
PROJECT."
2. Affidavit of Randall Hart
In his affidavit,Randall C.Hart("Hart")states that he is a principal at Vanasse Hangen
Brustlin, Inc. ("VHB"),which Colbea retained to conduct a traffic impact and access study
TIAS")in connection with the Proposed Project. Per the study, "VHB concluded that the
Proposed Project is expected to have minor impact on local traffic operations." The Woods
Property was not the subject of the TIAS.
Hart states in his affidavit that
t]he Woods Property has access for its patients, employees, and emergency
vehicles from both Station Avenue and Workshop Road. Further,Workshop Road
connects to the traffic signal at Station Avenue/White Path so patients,employees,
and emergency vehicles can utilize the signal for left turns."
4
The Cape Code Commission("CCC")reviewed the TIAS at the request of the Yarmouth
Zoning Board. The CCC sent a letter to the Yarmouth Town Planner after reviewing traffic
considerations,among other issues,providing generalized comments about the Proposed Project.
Hart states that this letter does not constitute a traffic study for the Woods Property or the Proposed
Project. Instead,the generalized comments are advisory in nature and do not specifically address
the Woods Property.
3. Affidavit of Dr.Woods'
In his affidavit.Dr.Woods states that he has overseen renovations,lease negotiations,and
management at the Woods Property. Further,he states that he owns real estate in Sandwich,
Massachusetts,which he acquired as a vacant lot in 1983. Since that time, he oversaw the
construction and renovations,as well as lease negotiations and management,at the Sandwich
property.
Dr. Woods states that,through observations and information conveyed to him by staff
members,there are approximately ten to thirty emergency vehicles accessing the Woods Property
each month. As to his qualifications to set forth his opinions,Dr.Woods states:
As an owner of two substantial Medical Office real estate properties occupied by
medical office tenants having the knowledge and experience detailed in paragraphs
2,3,and 4 above,I am qualified to testify as to my personal opinion of the value of
the Woods Property. It is my opinion that the impacts by any and all harms of
traffic,density,noise,light,trespass,parking,visual character and diminution of
value will be caused by the Proposed Project as detailed in the materials filed
herewith in support of the Opposition to Defendants' Motion for Summary
Judgment and will dramatically reduce the value of the Woods Property."
4 A considerable portion of Dr.Woods'affidavit addresses whether the defendants misconstrued his statements
regarding the number of entrances to the Woods Property parking lot.Namely,Dr.Woods states that the defendants
improperly aver that he falsely claimed there was only one entrance,on Station Avenue,when in fact there is a
second entrance on Workshop Road. This goes to the impact of traffic in the disputed area.For purposes of ruling
upon these motions,any intent behind Dr.Woods'responses as to parking entrances is immaterial,as there appears
to be no dispute that there were two entrances. Dr.Woods states,however,that the Workshop Road entrance does
not provide full access to and from the Woods Property.
5
DISCUSSION
I. Standard of Review for Summary Judgment
Summary judgment shall be granted where there are no genuine issues as to any material
fact and where the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P.56;
Cassesso v.Commissioner of Corrections,390 Mass.419,422(1983);Community Nat'1 Bank v.
Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively
demonstrating the absence of a triable issue and that the summary judgment record entitles it to
judgment as a matter of law. Pederson v. Time,Inc.,404 Mass. 14, 16-17(1989). The moving
party may satisfy this burden either by submitting affirmative evidence that negates an essential
element of the opposing party's case or by demonstrating that the opposing party has no reasonable
expectation of proving an essential element of his case at trial. Flesner v. Technical
Communications Corp.,410 Mass.805,809(1991);Kourouvacilis v.General Motors Corp.,410
Mass.706,716(1991).
II. Standard of Review for Standing
The plaintiffs allege they are aggrieved by the ZBA's Decision and will suffer substantial
injury if the Proposed Project is allowed. They allege they will be adversely impacted by the
Proposed Project as to traffic,density,noise, light,trespass,parking,diminution of value,and
visual character. Further,they argue the ZBA exceed its authority and the Decision is contrary to
the Town of Yarmouth Zoning Bylaws.
To have standing to challenge a zoning board's decision,a plaintiff must be a"person
aggrieved." G.L.c.40A,§17. Under this framework,abutters are presumed to have standing.
The defendant then has the burden to rebut the presumption. Marinelli v.Board of Appeals of
Stoughton,440 Mass.255,258(2003). There is not dispute that the Woods Property abuts the
6
location to the Proposed Project,thereby establishing the plaintiffs' presumed standing. "The
presumption recedes when a defendant challenges the plaintiffs status as an aggrieved person and
offers evidence supporting his or her challenge." Watros v. Greater Lynn Mental Health &
Retardation Ass'n, Inc.,421 Mass. 106, l I 1 (1995)(emphasis in original). In the context of a
motion for summary judgment, a developer cannot simply deny the plaintiff's allegations.
However,a"developer may rebut a presumption of standing by seeking to discover from such
plaintiffs the actual basis of their claims of aggrievement. If a person claiming to be aggrieved
can point to no such evidence,a party seeking summary judgment is entitled to rely on that fact."
Standerwick v.Zoning Bd.ofAppeals of Andover,447 Mass.20,37(2006).
A. Density,Noise,Light,Trespass,Parking,Visual Character,Diminution
in Value
The plaintiffs allege they are"person[s]aggrieved'by the Proposed Project because the
Woods Property will suffer unique harms regarding density,noise,light,trespass,parking,visual
character and diminution of value if the Proposed Project is completed. In their Statement of
Material Facts("SOMF"),the defendants set forth multiple facts specifically addressing each of
these issues,most of which the plaintiffs deny without any reference to the evidentiary record.
As to density,the SOMF provides:
With respect to damages alleged by Plaintiffs in regards to density,Plaintiffs
acknowledge that they do not know to what extent the Proposed Project's density
will negatively impact Plaintiffs and the value of the Woods Property. Rule
30(b)(6)Deposition of Woods Realty Associates at 34:6-11(Joint Exhibit E)."
o "Response:Denied."
With respect to density,Plaintiffs have no evidence to support their allegations
that the Proposed Projects density will negatively impact Plaintiffs. Id.at 34:27-
22(`I have no evidence to present to you today.')(Joint Exhibit E)."
o "Response:Denied."
As to noise,the SOMF provides:
7
With respect to damages alleged by Plaintiffs in regards to noise,Plaintiffs
acknowledge that they do not know to what extent the Proposed Project's noise
will negatively impact Plaintiffs and the value of the Woods Property. Id.at
35:11-24;see id.at 35:14('I don't know that.')(Joint Exhibit E)."
o "Response:Denied."
With respect to the allegations of noise,Plaintiffs admit that they[have]no
evidence to support their claim that noise resulting from the Proposed Project will
negatively impact Plaintiffs. See Id.at 35:24,36:1)('I don't have any evidence
to give to your today.')(Joint Exhibit E)."
o "Response:Denied."
As to light,the SOMF provides:
With respect to damages alleged by Plaintiffs in regards to lighting,when asked
how much the Proposed Project's lighting will negatively impact the value of the
Woods Property,Plaintiffs responded"I don't know." Id.at 36:18-21(Joint
Exhibit E)."
o "Response:Denied."
When asked what evidence Plaintiffs had to support their claim that the Proposed
Project's lighting would negatively impact the value of the Woods Property,
Plaintiffs acknowledged'I can't give you any evidence today.' Id.at 36:22-24;
37:1-2(Joint Exhibit E)."
o "Response:Denied."
As to trespass,the SOMF provides:
With respect to damages alleged by Plaintiff in regards to trespass,Plaintiffs do
not know how much the Proposed Project will negatively impact the value of the
Woods Property with respect to trespass,nor do they have any evidence to
support this claim. Id.at 38:23-24;39:1-5(Joint Exhibit E)."
o "Response:Denied."
As to parking,the SOMF provides:
With respect to Plaintiffs'claim that the Proposed Project will negatively impact
the value of the Woods Property and result in a decrease of available parking at
the Woods Property,Plaintiffs acknowledge that they`don't have any figures
for that'and`don't have any evidence to present to[Defendants]. Id.at 44:8-
21(Joint Exhibit E)."
o "Response:Denied."
As to visual character,the SOMF provides:
8
Plaintiffs have no evidence to support their claim that the visual character and
quality impact of the Wood Property will be negatively impacted as a result of the
Proposed Project other than Plaintiffs'own`opinion."' Id.at 46:22-24;47:1-2
Joint Exhibit E)."
o "Response:Denied."
As to diminution in value,the SOMF provides:
With respect to damages alleged by Plaintiffs in regards to diminution of value,
the Plaintiffs do not know how much the Proposed Project will negatively impact
the value of the Woods Property." Id.at 45:14-22(Joint Exhibit E)."
o "Response:Denied."
With respect to damages alleged by Plaintiffs in regards to the diminution of
value issue,Plaintiffs have no evidence to support their allegations that the
Proposed Project will negatively impact the value of the Woods Property. Id.at
36:22-24,37:1-2(Joint Exhibit E)."
o "Response:Denied."
Plaintiffs acknowledge that they do not know how much the Proposed Project
will negatively impact the value of the Woods Property with respect to the visual
character and quality impact. Id.at 46:17-21(Joint Exhibit E)."
o "Response: Denied."
Rule 56 of the Massachusetts Rules of Civil Procedure specifically addresses the materials
this court must consider in ruling upon the pending motion. Mass.R.Civ.P.56(c)("The judgment
sought shall be rendered forthwith if the pleadings,depositions,answers to interrogatories,and
responses to requests for admission under Rule 36,together with the affidavits,if any,show that
there is no genuine issue as to any material fact and that the moving party is entitled to ajudgment
as a matter of law."). Here,the plaintiffs have not identified any basis among these discovery
items to demonstrate they enjoy standing to proceed with this litigation.
The plaintiffs have also baldly failed to comply with the summary judgment procedure set
forth in Superior Court Rule 9A. This section provides that a non-moving party's
Opposition may include a response to the Moving Party's Statement of Facts. . .. The
response to the numbered paragraphs shall be limited to stating whether a given fact is
disputed and,if so,cite to the specific evidence,if any,in the Joint Appendix that
demonstrates the dispute. It shall not:
9
a.Deny a fact unless the party has a good faith basis for contesting it.
For purposes of summary judgment, each fact set forth in the moving party's
statement of facts is deemed to have been admitted unless properly controverted in
the manner forth in this Paragraph(b)(5)(iii)(A)."(emphasis added).
Mass.Superior Court Rule 9A(b)(5)(iii)(A).
Throughout the Joint Statement of Material Fact,the plaintiffs merely state"Response:
Denied"as to factual allegations. In several places they impermissibly deny asserted facts that
reflect direct language from deposition testimony. On this basis,the plaintiffs have failed to
comply with the requirements of Superior Court Rule 9A in responding to the defendants'SOMF.
The facts asserted by the defendants,which include ongoing references to the plaintiffs' lack of
evidence supporting a basis to find them persons aggrieved,are therefore"deemed to have been
admitted." Id.
Aside from these procedural deficiencies,the plaintiffs'arguments surrounding standing
similarly fail because the summary judgment record is devoid of any evidence to support the
plaintiffs' claim that they will suffer unique harms regarding density, noise, light, trespass,
parking,visual character and diminution of value if the Proposed Project is completed. Nickerson
v.Zoning Bd. of Appeals of Raynham,53 Mass.App.Ct.680,683(2002)(quotation omitted)
Individuals acquire standing by asserting a plausible claim of a definite violation of a private
right,a private property interest,or a private legal interest,as distinct from a claim that involves a
matter of general public interest.").
The court acknowledges that there is competing caselaw regarding which,if any,of these
purported damages are sufficient to deem the plaintiffs as persons aggrieved. However, the
plaintiffs'claims throughout this case for each type of purported damages are merely speculative
10
and unsupported by the record. They have not put forth any evidence quantifying or substantiating
the specific harms they would suffer if the Proposed Project were completed. This is insufficient
to establish standing after the defendants rebutted the plaintiffs' presumptive standing. See
Denney v.Zoning Bd.of Appeals of Seekonk,59 Mass.App.Ct.208,212(2003)(if standing is
challenged,"[tjhe plaintiffs evidence must be more than unsubstantiated claims or speculative
personal opinions.").
Additionally,the court acknowledges that there is competing caselaw regarding which
factors,if any,require expert testimony to identify and quantify any alleged harm. To the extent
any such evidence is required,the plaintiffs have not produced any affidavits or other means for
setting forth any opinions. Given Dr.Woods' status as an orthodontist rather than having any
specialized real estate training.the court does not credit his affidavit in establishing any sort of
expertise in rendering his opinions about any purported damages arising from the completion of
the Proposed Project.'
By contrast,the defendants have included the affidavit from Haskell,which addresses each
of these issues for which the defendants allege to have been harmed. Haskell has formed the
opinion,based upon her experience in real estate valuations and view of the surrounding area,that
the plaintiffs will not suffer the necessary particularized harm sufficient to confer standing.
Accordingly,having failed to introduce any evidence,expert or otherwise,the plaintiffs
are not entitled to standing based upon harm regarding density,noise, light,trespass, parking,
visual character,and diminution of value if the Proposed Project is completed.
5 Notably,in an attempt to address any deficiency in his deposition testimony,Dr.Woods states in his affidavit that
he"was not qualified to testify as to legal matters,which is how[he]interpreted to be the questions regarding]what
evidence'[he]had as to the factual assertions Plaintiffs are making. [He viewed]identifying evidence as calling for
legal interpretation."This belies his claims,because,on the one hand he wants to be construed as an expert,while
on the other he holds himself out as a layman unfamiliar with the legal proceedings at issue.
I
B. TRAFFIC
The above discussion regarding the plaintiffs'failure to produce any supporting evidence
as to density,noise,light,trespass,parking,visual character,and diminution of value similarly
applies to the purported impact on traffic. As to traffic,the SOMF provides:
With respect to damages alleged by Plaintiffs in regards to traffic,Plaintiffs
acknowledge that they do not know to what extent the Proposed Project will
negatively impact traffic near the Woods Property. Id.at 33:1-3('I don't have
any specifics on that')(Joint Exhibit E).
o "Response: Denied."
The plaintiffs did not provide any references to the summary judgment record or other
grounds for denying this fact. Thus,they have failed to comply with Mass.R.Civ.P.56 and Rule
9A by asserting denials without a good faith basis for doing so.
Aside from this procedural defect,the plaintiffs have also failed to establish standing by
providing any substantive evidence to demonstrate they will suffer a unique harm if the Proposed
Project is completed. There is no defmitive information,by way of any quantitative assessment,
regarding the specific impact upon traffic.
The summary judgment record demonstrates that there are two entrances to the Woods
Property parking lot: Station Avenue and Workshop Road. The plaintiffs admit that the two
entrances allow patients,medical personnel,and emergency vehicles to access the parking lot 6
The plaintiffs argue,however,that they would be harmed by increased traffic at the Station Avenue
entrance if the Proposed Project is completed,and that the second entrance at Workshop Road will
not alleviate such problem. However,the plaintiffs have failed to provide any evidence,expert or
6 As to this issue,the SOMF provides:
In Plaintiffs'Rule 30(b)(6)deposition,however,Plaintiffs acknowledge that the Woods Property has
a second entrance off of Workshop Road that would permit patients,medical personnel,and
emergency vehicles to access the medical offices at the Woods Property. See Rule 30(bX6)Deposition
of Woods Realty Associates at 50:21-24;51:1-7(Joint Exhibit E).
o "Response:Admitted."
12
otherwise,to conclude that they will suffer a unique harm as to traffic. Instead,the plaintiffs
vaguely reference local maps and other unsupported information such as the affidavit from Dr.
Woods,which does not constitute expert opinion establishing such harm.'
By contrast,the defendants have produced the Hart affidavit,which notes the Proposed
Project will only minorly impact local traffic and addresses the significance of the second entrance
on Workshop Road in alleviating traffic. The plaintiffs have failed to demonstrate that any such
minor impact will cause them any harm.
Finally,any reliance upon the CCC letter is misplaced. The correspondence states:"Cape
Cod Commission staff provides the following comments" and the "Commission staffs
comments herein are more generalized than would be provided if the Project was subject to and
under DRI review by the Commission." (emphasis added). Thus,this letter from the CCC is only
advisory in nature,rather than setting forth opinions or parameters for completion of the Proposed
Project.
Further, this letter does not specifically address the impact of traffic on the Woods
Property. Therefore,to the extent the CCC letter addresses traffic,it is immaterial as to the Woods
Property because it does not set forth a unique impact on the Woods Property if the Proposed
Project is completed. Nickerson,53 Mass.App.Ct.at 683(2002)(the plaintiffs must show"a
plausible claim of a definite violation of a private right,a private property interest,or a private
legal interest,as distinct from a claim that involves a matter of general public interest.").
Given the absence of evidence supporting their claim,the plaintiffs are not entitled to
standing based upon harm resulting for the impact of traffic if the Proposed Project is completed.
Dr.Woods'affidavit makes mention of this issue,noting what he perceives to be an inconsistency in the record
before this court. He argues that the defendants misconstrue the plaintiffs'discovery responses to questions about
the ingress and egress to the Woods Property. Any consistency,to the extent any exist,is immaterial to the court's
ruling on these motions.
13
ORDER
For the foregoing reasons, it is hereby ORDERED that the defendants' Motions for
Summary Judgment be ALLOWED.
April 5 2022 C 'l'711..AtektyElaineM.Buckley
Justice of the Superior Court
Ly: ie94t
tove-
AA true copy,Attest
II if;
lerk
14