Agenda - Planning Commission - 06/02/2011

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Zoning Bulletin April 25, 2011 ( Volume 5 ( No. 8 The Hiebs and the ZBA appealed. DECISION: Vacated, and matter remanded. The Supreme Judicial Court of Massachusetts held that the ob- struction of the Kenners' ocean view based on the seven -foot in- crease in height of the Hiebs' house was insufficient to qualify the Kenners as "aggrieved persons," so as to confer standing. The court also held that any diminution in the value of the Kenners' property based on obstruction of their ocean view due to the in- creased height of the Hiebs' house did not provide the Kenners with a basis for standing to bring an action to challenge the permit issued to the Hiebs. The court explained that a "person aggrieved," within the mean- ing of .Mass. Gen. L. c. 40A, § 17, is one who "suffers some in- fringement of his legal right." Generally, abutting landowners, like the Kenners, enjoy a rebuttable presumption that they are "persons aggrieved." However, said the court, if their standing is challenged and evidence is offered supporting that challenge, there is no benefit of presumption of aggrievement. Here, the Hiebs had challenged the standing of the Kenners, and the Hiebs had successfully (according to the land court judge) of- fered evidence to rebut the Kenners' presumption of aggrievement based on their claim that the Hiebs' new house would block the Kenners' view of the ocean. Therefore, the burden then shifted to the Kenners to prove, "by direct facts and not speculative evidence, that they would suffer a particularized injury as a consequence of the increased height of the Hiebs' house." The Kenners had to not just show they were "impacted," but had to show that they would be "injured or harmed." The Supreme Judicial Court found that the Kenners failed to meet that burden. The court explained that, "[generally speaking, concerns about the visual impact of a proposed structure on an abutting property are insufficient to confer standing." "However, where a municipal- ity's bylaw specifically provides that the zoning board of appeals should take into consideration the visual impact of a proposed structure, `[that] defined protected interest may impart standing to a person whose impaired interest falls within that definition." Here, the Town's bylaw did address the visual impact of a pro- posed structure "on the visual character of the neighborhood as a whole." So, in order for the Kenners to establish standing based on the visual impact of the Hiebs' new house, the court said the Ken- © 2011 Thomson Reuters 7