Agenda - Planning Commission - 06/07/2012

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April 25, 2012 'Volume 6 I No. 8 Zoning Bulletin produce, in the context of summary judgment, to rebut successfully the presump- tion of standing afforded to an abutting property owner. The Background/Facts: George P. Fogg ("George") lived in a single-family home at 91 Spooner Road in Brookline, Massachusetts (the "Town"). George's mother, Frances, lived in a single-family home at 61 Spooner Road. Their prop- erties were located on either side of and abutted the property at 81 Spooner Road (the "subject property"). On June 30, 2004, 81 Spooner Road, LLC (the "Developer"), purchased the subject property. The Developer later obtained approval from the Town's plan- ning board to subdivide the subject property into two lots-81 and 71 Spooner Road. Thereafter, the Developer sold 81 Spooner Road and retained the newly created 71 Spooner Road. The Developer then sought and obtained a construc- tion permit from the Town's building commissioner, allowing the construction of a two-story single-family house at 71 Spooner Road. George and Frances (collectively, the "Foggs") challenged the issuance of the building permit. Among other concerns, they asserted that, construction of the house at 71 Spooner Road violated the density provisions of the Town's zoning bylaw. The Town's zoning board of appeals (the "Board") determined that the build- ing permit should be rescinded. After the issue of the Foggs' standing (i.e., ability to maintain the action for judicial review of the Board's decision) --which was raised by the Developer — was eliminated on summary judgment, the trial court affirmed the Board's deci- sion on the merits. The Developer appealed. The Appeals Court affirmed the judgments, both as to standing and the underlying merits. The Developer again appealed. The Developer's sole argument on appeal fo- cused on the Foggs' standing. The Developer argued that the Foggs did not have standing to challenge the building commissioner's decision before the Board be- cause they were not "aggrieved" persons. DECISION: Affirmed. The Supreme Judicial Court of Massachusetts held that the Foggs were "ag- grieved" persons with standing to challenge the building commissioner's decision to issue a building permit for 71 Spooner Road. In so holding, the court addressed both the requirements for: achieving "per- sons aggrieved" status; and what evidence a defendant must produce, in the con- text of summary judgment, to rebut successfully the presumption of standing af- forded to an abutting property owner. The court explained that under Massachusetts' Zoning Act, G.L. c. 40A, only a "person aggrieved" has standing to challenge a decision of a zoning board of appeals. A "person aggrieved," further explained the court, is one who "suffers some infringement of his legal rights." The rights or interests that are allegedly infringed must be rights or interests that the Zoning Act is intended to protect, either explicitly or implicitly. Moreover, the alleged aggrievement must be more than a minimal or slightly appreciable harm. 10 © 2012 Thomson Reuters