Massachusetts Real Estate Lawyer Blog
Before someone can challenge the validity of a permit issued to another landowner, that person must have legal standing. In a June 12, 2017 case, the issue for the Massachusetts Land Court was whether a plaintiff who lived across from the defendant’s property had standing to appeal a special permit granted to the defendant by the local zoning board. The special permit allowed the defendant to construct a four-unit residential building in a zone where three-unit buildings are allowed as of right and where larger buildings require a special permit.
The defendant in the case was a real estate developer that purchased property located across the street from the plaintiff’s house. The defendant sought a special permit to tear down the existing single-family home on the property and replace it with a single structure containing four residential units. After the zoning board granted the permit, the plaintiff appealed, alleging that she would be negatively affected by traffic and fire vehicle access that will result from the proposed development.
In order to have standing to challenge the defendant’s zoning permit, the plaintiff must be “aggrieved” as defined by law. People entitled to notice of the permit are entitled to a rebuttable presumption that they are aggrieved. In the case, the plaintiff was an abutter to an abutter within 300 feet of the defendant’s property, and as a result, she was entitled to the presumption that she is aggrieved.
After the land court concluded that the defendant had successfully rebutted the presumption of standing, the plaintiff then had the burden to present evidence that would establish that she will suffer some direct injury to a private right, private property interest, or private legal interest as a result of the zoning board’s decision, which is special and different from the injury the decision will cause to the community at large. The plaintiff must also establish that her injury is one that the ordinance requiring the permit is intended to protect, either explicitly or implicitly.
The plaintiff first argued that she would be injured by the increased traffic congestion on the street, which would also impede her ability to access her parking lot. The defendant presented testimony from many experts as well as a traffic assessment report opining that only one additional vehicle during the morning and afternoon rush hours would be generated by the proposed dwelling. The land court went on to find that the increase of a single vehicle during peak hours would be negligible, having no impact on traffic safety, and that the plaintiff’s concerns about traffic impacts were too speculative and remote to grant them standing on such grounds.
The plaintiff also claimed that she would suffer injuries based on a lack of fire vehicle access to the defendant’s property, which could increase the risk of the fire spreading to her property. However, the deputy chief of the fire department testified that the proposed development complies with the fire code, and he had no other concerns from a fire safety standpoint. The land court therefore found no evidence that the defendant’s proposal, due to its size or location, would pose a greater fire risk than any other present structure. Accordingly, without any legal injury to the plaintiff stemming from the development, she had no standing to challenge the permit, and the decision was upheld.
The dedicated real estate attorneys at Pulgini & Norton can provide advice regarding your residential property and defend against legal challenges. We handle all types of residential real estate matters, including title actions and mortgages, house purchases and sales, permits and land use issues, and more. To discuss your needs with an experienced attorney, contact Pulgini & Norton at (781) 843-2200 or submit a contact form online.
More Blog Posts:
Massachusetts Homeowners Win Breach of Contract Claim Against Corporation in Property Dispute, Massachusetts Real Estate Lawyer Blog, published September 5, 2016
Massachusetts Property Owners Object to Modification of Subdivision Plan By Developer, Massachusetts Real Estate Lawyer Blog, published November 7, 2016