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Massachusetts Homeowner Appeals Zoning Decision Allowing Town’s Development Project

If you are opposed to a local government decision regarding land use, you may be able to bring an appeal if you are an aggrieved person as defined by law.  In a February 16, 2018 Massachusetts land use case, the Land Court considered whether a plaintiff had legal standing to challenge a local zoning board decision that authorized the development of a vacant lot abutting his backyard.Legal News Gavel

In the case, the local planning board granted a special permit to the town authorizing the construction of a group home for veterans who are either homeless or at risk of becoming homeless, using the town’s property pursuant to a bylaw providing for affordable housing.  The plaintiff, who owned abutting property, appealed the decision, contending that the board exceeded its authority in granting the special permit.  The defendants asserted that the plaintiff lacked standing to challenge the special permit.

In Massachusetts, people with abutting land are entitled to notice of a zoning board’s hearings and have a rebuttable presumption that they are aggrieved persons.  Nevertheless, abutters have the burden of establishing standing so that, if a defendant offers enough evidence to rebut the presumption, the plaintiff must prove standing by putting forth credible and direct evidence of a particularized injury.  The analysis is whether the plaintiffs have sufficient evidence to show they will be injured or harmed by proposed changes to an abutting property, rather than whether they will be merely affected by the changes.  One way a defendant can rebut the presumption is by showing that the claims of injuries raised by the plaintiff are not interests that the Zoning Act is intended to protect.

The plaintiff in the case claimed that he was aggrieved by the zoning board’s decision because the proposed development would cause a diminution in the value of his property, would result in a loss of privacy, would contribute to overcrowding of land and an undue concentration of population, and would create a risk of flooding on his property.  The defendants in the case argued that, since the zoning bylaw provided for the development of affordable housing, it does not protect any of the interests that the plaintiff claimed would be harmed by the construction of the development.  As a result, they argued that the plaintiff did not have standing to challenge the permit.

The land court agreed, finding that the bylaw was enacted with a specific affordable housing objective, which was intended to blunt the effect of rising land prices.  Accordingly, the bylaw did not confer standing on an abutter, such as the plaintiff, who contends he is aggrieved by a decrease in his property value.  The court further found that loss of privacy is not an interest protected by the bylaw and, taken alone, could not serve as a basis for standing.  Nor could the loss of privacy, tethered to overcrowding and undue concentration of population, confer standing, since those harms are not interests that the bylaw was intended to protect.  Finally, insofar as the plaintiff did not provide evidence that he would be harmed by drainage from the development, the court held that he failed to provide sufficient evidence to substantiate his allegation of harm.  As a result, the plaintiff did not have standing to proceed with the appeal, and the matter was dismissed.

The Massachusetts real estate attorneys at Pulgini & Norton assist homeowners and other individuals with resolving residential property issues.  We can represent people in matters such as purchase and sale agreements, mortgage refinancing, zoning appeals, and more.  To schedule an appointment, call (781) 843-2200 or reach out online to schedule a free consultation.

More Blog Posts:

Massachusetts Residents Challenge Decision to Lease Town Property to Solar Company, Massachusetts Real Estate Lawyer Blog, published October 23, 2017

Massachusetts Landowners Successfully Challenge Permit Issued for Housing Development Next to Their Property, Massachusetts Real Estate Lawyer Blog, published September 19, 2016

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