MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Stanley Miller, appeals from a judgment of the Land Court declaring that his property is not entitled to the single lot exception of the town of Norwell zoning bylaw (bylaw) and therefore must comply with the bylaws front yard setback requirement. Miller does not raise any arguments on the merits but argues that the judge erred in finding that the plaintiff had standing to bring the claim. Specifically, Miller argues that the judges privacy analysis was flawed and that she improperly considered a trial exhibit. We affirm.
Background. The plaintiff in August 2019 filed a claim against Miller and the other defendants seeking a declaration pursuant to G. L. c. 240, § 14A, that Millers lot was not eligible for the single lot exception articulated in Article 4, Section 201-4.5 of the bylaw, and therefore was not exempt from the fifty-foot front yard setback requirement articulated in Article 4, Section 201-9.4(A). The defendants moved to dismiss the case on the grounds that the plaintiff lacked standing to bring the claim. The plaintiff opposed the motion to dismiss and filed a cross motion for summary judgment. The judge denied the defendants motion to dismiss after finding that the plaintiff had alleged sufficient possible injury to establish standing to bring the claim. The judge also denied the plaintiffs motion for summary judgment after concluding that disputed issues of material fact remained as to how much of the plaintiffs property would be visible from Millers lot.
The sole issue at trial was whether the plaintiff had standing to bring the claim. The plaintiff introduced documentary and testimonial evidence concerning the proximity of Millers proposed structure to the plaintiffs home and what portions of the plaintiffs property would be visible from the proposed structure. The judge also visited the properties and viewed for herself how much of the plaintiffs property was visible from the Millers plot.
Following the trial, the judge found that the construction of the proposed home at a thirty-foot setback would sufficiently infringe on the plaintiffs privacy to establish standing for the plaintiff to challenge Millers use of the single lot exception to the standard fifty-foot setback requirement. After the judge determined that the plaintiff had standing to bring the claim, the plaintiff filed a renewed motion for summary judgment arguing that Millers property is not entitled to the exception and must meet all applicable provisions of the bylaw. On March 10, 2023, the judge allowed the plaintiffs motion and entered a declaratory judgment that the exception does not apply. Miller appeals.
Discussion. Miller first argues that the judge abused her discretion by relying on Exhibit 9, a plan prepared by the plaintiffs engineering expert, which was admitted in evidence at trial. The parties stipulated to the admission of Exhibit 9. Miller now argues that the exhibit was effectively “debunked” and “supplanted and corrected by other evidence,” such that it “effectively was no longer a part of the record.” But the fact that one exhibit is admitted which may contradict another does not make the first exhibit inadmissible. While Miller argues that the evidence contradicted Exhibit 9, the judge reached a different conclusion, which is her purview. See Commonwealth v. Gumkowski, 487 Mass. 314, 329 (2021). Furthermore, Millers own engineering expert testified that Exhibit 9 accurately showed the relationship between the plaintiffs property and Millers property. See Federico v. Ford Motor Co., 67 Mass. App. Ct. 454, 459 (2006).
Miller also argues that the judge erred in finding that the plaintiffs property was sufficiently affected by Millers proposed construction to provide standing under G. L. c. 240, § 14A. “On appellate review, we defer to the factual findings of the trial judge unless they are clearly erroneous.” Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 728 (2013). Cf. Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 119 (2011) (standing under the zoning laws “essentially becomes a question of fact for the judge”). Because the statute “is to be given a broad construction,” a plaintiff challenging a zoning action under G. L. c. 240, § 14A, “need not demonstrate that he will suffer an injury that is special and different from that experienced by the general community.” Hanna v. Framingham, 60 Mass. App. Ct. 420, 422-423 (2004). For example, a landowners “[c]oncerns over increased traffic ․ may be used to support standing.” Id. at 423.
Miller argues that, under G. L. c. 214, § 1B, the judge needed to find that Millers structure would infringe on the plaintiffs “right against unreasonable, substantial or serious interference with his privacy.” But this is not the correct legal standard under which a plaintiffs standing to file a claim under c. 240, § 14A is assessed. The plaintiff did not need to establish the elements necessary to bring an invasion of privacy claim for damages under c. 214, § 1B. The plaintiff only needs to establish that Millers proposed home would restrict or limit “the present or future use, enjoyment, improvement or development” of the plaintiffs property. CommCan, Inc. v. Mansfield, 488 Mass. 291, 294 (2021).
The judge found that the plaintiffs “use and enjoyment of his property would be directly and adversely affected by construction of a house set back thirty feet from the private way, Harbor Lane, as proposed by Miller.” Miller provides no support that contradicts the judges findings and, as noted above, we are unpersuaded that the judge erred by considering Exhibit 9. The judges finding that the evidence was sufficient to establish the plaintiffs standing is not clearly erroneous. We therefore conclude that Millers argument lacks merit.
Appellate costs. The plaintiff has requested that this court award him attorneys fees and costs incurred in defending this appeal on the grounds that the appeal was frivolous. See Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). We agree that fees and costs are appropriate in this case. See Avery v. Steele, 414 Mass. 450, 456 (1993). Consistent with the requirements of Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the plaintiff may file a request for attorneys fees and costs, along with supporting documentation, within fourteen days of the issuance of the decision in this case. The defendant Miller shall have fourteen days thereafter within which to respond.
Judgment affirmed.