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Standing in Zoning Appeals Cases By Mark A. Kablack, Esq. to land development in Massachusetts. There are often numerous permits and approvals needed from diff erent boards and committees, and reviews are usually required on multiple levels, including local, state and federal. The burden is exacerbated when a permit or approval, once issued, is appealed by an abutter. The time and expense associated with litiga- tion can have severe consequences for any project, often shutting it down before an ultimate judge or jury decision is rendered. In response to these concerns, the Home Builders Association of Massachusetts (HBAM) has successfully advocated leg- islative and regulatory changes that streamline permitting procedures and establish better rules with respect to per- mit appeals. The situation has improved yet again as a result of a recent decision by the Supreme Judicial Court in Kenner v Zoning Board of Appeals of Chatham, 459 Mass. 115 (2011), regarding issues of stand- ing in a zoning appeal case. In Kenner, a landowner in Chatham, MA, B sought and obtained a special permit under the local zoning bylaw to raze an existing house and construct a new house on the same building footprint. The new house was proposed at a height 7 feet taller than the existing house. A special permit was necessary, given that the lot was undersized according to cur rent lot dimensional criteria. When the Zoning Board of Appeals issued the special permit for new construction, the abutting neigh- bor appealed. The neighbor argued that the new house would block light and ocean UILDERS AND DEVELOPERS often complain, rightfully so, about the burdensome regulations that apply breezes to the neighbor’s property and would cause traffi c problems in the neigh- borhood. The neighbor appealed the permit decision to Land Court. Under the Zoning Enabling Act (M.G.L. c.40A, Section 17), any person aggrieved by the issuance of a zoning permit may appeal that permit by fi ling a complaint within 20 days after the permit decision has been fi led with the town clerk. A per- son aggrieved is further defi ned in case law as someone who suff ers infringement of his or her legal rights. In legal jargon, this person is considered to have “stand- ing” in the case. Chapter 40A takes this a step further by creating a rebuttable presumption of a person aggrieved (or standing) if that person is a “party in interest” entitled to public hearing notice of the permit proceeding. Under c.40A, Section 11, a party in interest is defi ned as an abutter, or an abutter to an abutter within 300 feet of the property under permit review. This framework is often problematic to a builder or developer under a permit proceeding, resulting in the potential windfall of litigation discussed above, as it often aff ords a signifi - cant number of people with an opportunity to appeal a permit decision. The Kenner court reminds us, however, that while the court doors are initially left wide open to abutters, the presumption created under c.40A is rebuttable. Recent cases, notably Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20 (2006) and now Kenner, have provided a more clear direction on what one must do to rebut the presumption of standing and then, once rebutted, how the abutter (or appealing party) must then articulate aggrievement to continue to prosecute his 34 | GREATER BOSTON Builder+Architect BOSTON.BUILDERARCHITECT.COM or her appeal. When the presumption is overcome, the burden shifts to the abutter to prove particularized harm. Moreover, the harm must be grounded in a private right, private property interest or private legal interest, and must be a right or interest that is properly within the pro- tected scope of c.40A and local ordinances or bylaws. It is insuffi cient for an abutter to speculate about harm, or attempt to voice concerns that are general public concerns rather than personal concerns. Lastly, the harm must be more than just minimal or slightly appreciable. The harm must be substantial enough to cause actual aggrievement. It must be objective, true and measurable. These are powerful provisions that a builder or developer can use in defense of a zoning appeal. In the Kenner case, the property owner seeking to build a new house provided uncontroverted testimony from an archi- tect and an engineer that the new house had been designed to cause a minimal increase in height at the roof line, with insignifi cant impact to views, light and air to abutting properties. In response, the abutter provided only personal opinion about views and vistas, and off ered poorly constructed photographs, taken by a nonexpert, which attempted to show a rendering of the newly proposed home based upon estimated measurements. The Land Court judge ruled that any harm to views, light or air stemming from the new house would be de minimis. The Land Court Judge also ruled that claims related to loss of property value and traffi c con- cerns were a l so de minimi s and speculative. On such fi ndings, the Land Court Judge ruled that the abutter had no LAW MATTERS

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