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Massachusetts Homeowners Successfully Establish Standing to Oppose Variance for Proposed Construction

New construction and major changes to property may have an unwelcome impact on other homeowners.  Whether or not a person can formally contest a proposed change, however, depends on if they have standing to bring a legal action.  The question of standing was one of the main issues in a November 15, 2018 Massachusetts real estate case before the Court of Appeals.

The defendants in the case had received a variance from the local zoning board, which allowed them to go forward with the proposed construction of a home on a vacant lot they owed.  The vacant lot was adjacent to an existing house, also owned by the defendants.  The plaintiffs’ property abutted and was adjacent to the vacant lot on the other side.  In securing the variance, the proposed house would be closer to the plaintiffs’ property than otherwise allowed.

The plaintiffs filed an action in Land Court challenging the variance.  Ultimately, the Land Court concluded that the defendants’ two lots had merged, and as such, a variance could not issue to allow construction of a second home on the property.  The defendants appealed, arguing that the plaintiffs lacked standing to bring the action.

In order to have standing to challenge the grant of a variance in Massachusetts, a person must be aggrieved under the law.  Because the plaintiffs in the case lived on abutting property, they had a presumption of standing.  In turn, the defendants could rebut the presumption by showing that the plaintiffs’ complaints are not interests that the Zoning Act intends to protect, or present evidence that the plaintiffs’ allegations are unfounded or minimal.

On appeal, the court found that the plaintiffs had standing based on their interests of privacy, stability of the property, and reducing the risk of fire.  The court agreed that the plaintiffs would suffer a loss of privacy as a result of the reduced side-yard setback of the proposed house, which was shown with photographs, maps, and construction plans.

The defendants’ proposal required the construction of a six-foot retaining wall, located within two feet of the plaintiffs’ property line.  The court found that the excavation needed to construct the wall would not only trespass into the plaintiffs’ property, but also affect the stability of the plaintiffs’ property, as multiple mature trees would need to be removed during the excavation process.  Finally, the court agreed that the risk of fire would be increased with the removal of the trees, and also noted that the proposed driveway would not be wide enough for a fire truck.

After concluding that the plaintiffs had standing to bring a legal challenge, the Court of Appeals went on to rule that the defendants’ properties had merged as a matter of law.  Accordingly, no variance would allow for a second house on the property.  The court therefore affirmed the decision in favor of the plaintiffs.

The Massachusetts property attorneys at Pulgini & Norton can provide advice concerning residential real estate issues.  We have guided homeowners and buyers through the financing, purchase and sale agreements, closings, permit applications, and other residential property transactions.  Schedule your appointment with an experienced real estate lawyer today by calling (781) 843-2200 or contacting us online.

More Blog Posts:

Massachusetts Homeowner Brings Action Against Neighbor to Enforce Zoning Law, Massachusetts Real Estate Lawyer Blog, published August 21, 2017

Massachusetts Property Owners Seeking Approval to Build House Encounter Frontage Issues, Massachusetts Real Estate Lawyer Blog, published August 21, 2017

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