Massachusetts Real Estate Lawyer Blog
The Massachusetts Land Court released a recent decision in the case of Holmes v. Guinen, addressing the issues of whether the plaintiffs have standing to challenge the zoning variance granted to their defendant-neighbor to construct a new house only five feet from their property line, and whether the variance was properly granted to the defendant.
Standing
To have standing to challenge a decision granting a variance, a person must be aggrieved by the decision. By statute, those whose property abuts the subject property or whose property is within 300 feet of the subject property are entitled to a rebuttable presumption that they are aggrieved and therefore have standing. Since the plaintiff’s property abuts the subject property, they have a rebuttable presumption of standing. A defendant can rebut the presumption by either showing that the reasons the plaintiff claims to be aggrieved are not those protected by the Zoning Act, or that the plaintiff’s allegations are unfounded or de minimis. If the defendant sufficiently rebuts the presumption, the burden is on the plaintiff to prove standing by establishing, with direct facts, that the injury stemming from the decision is special and different from the concerns of the rest of the community.
At trial, the plaintiffs alleged that the defendant’s proposed new house would harm them by increasing density, which is considered a fundamental purpose of the zoning laws. The court stated that, although the existence of current overcrowding as well as the undersized lots in the area made it easier for the plaintiffs to establish standing based on density concerns, these facts were not conclusive. However, the court also considered photographs, the plaintiffs’ testimony, and other evidence, ultimately finding that the proposed new house would be so close to the plaintiffs’ house that they would see, hear, and smell each other’s activities. Thus, the plaintiffs established a presumption of standing because the increase of density would lessen the plaintiffs’ privacy. The court further found that the defendant did not present sufficient evidence to rebut the plaintiffs’ presumption of standing.
Zoning Variance
The second issue on appeal was whether the Zoning Board property granted the variance from the requirements of the By-Laws to permit the defendant to construct the proposed house. The relevant Massachusetts By-Laws allow zoning variances only if, due to circumstances relating to the soil conditions, shape, or topography of the property, literal enforcement of the By-Laws would involve substantial hardship, and the proposed relief may be granted without substantial detriment to the public good, and without violating the intent or purpose of the laws. Since the Zoning Board did not make specific findings as to what circumstances of the soil conditions, shape, or topography of the property made it special, nor findings regarding the hardship to the defendant, nor findings that the variance could be granted without substantial detriment to the public good, the court remanded the case back to the Zoning Board for a determination of these issues.
The Massachusetts attorneys at Pulgini & Norton advise clients on a broad range of real estate matters, including land use and zoning issues, easements, and other property transactions. To discuss your real estate needs with one of our experienced attorneys, call (781) 843-2200, or contact us online.
More Blog Posts:
Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit, Massachusetts Real Estate Lawyer Blog, published August 14, 2015
Massachusetts Zoning Laws and Construction Permits, Massachusetts Real Estate Lawyer Blog, published May 14, 2015