Agenda - Planning Commission - 06/07/2012

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Zoning Bulletin April 25, 2012 'Volume 6 1 No. 8 The court further explained that abutters, like the Foggs, are entitled to a re- buttable presumption that they are "aggrieved" persons under the Zoning Act, and therefore, have standing to challenge a decision of a zoning board of ap- peals. Under such circumstances, the adverse party —here the Developer —can challenge the abutter's presumption of standing by offering evidence "warrant- ing a finding contrary to the presumed fact," said the court. Such evidence that a defendant like the Developer must produce to rebut the abutters' presumption of standing include showing either: (1) that, as a matter of law, the claims of ag- grievement raised by the abutter are not interests that the Zoning Act is intended to protect; and/or (2) credible affirmative evidence refuting the presumption of standing —showing a finding contrary to the presumed fact (e.g., such as affida- vits of experts establishing that the abutter's allegations of harm are unfounded or de minimis). Here, the court found that the Foggs, as abutters, enjoyed a presumption of standing to challenge the issuance of the building permit to the Developer. The court further found that the Developer failed to adequately rebut that presumption. The court acknowledged that, because the issue of standing was raised in the summary judgment context, the Developer was not required to present affirma- tive evidence that refuted the Foggs' basis for standing. It would be enough if the Developer could show that the Foggs had no reasonable expectation of proving a legally cognizable injury. If the Foggs had acknowledged during discovery a lack of substantive evidence to establish a legally cognizable injury, the Devel- oper could have relied on those admissions to rebut the Foggs' presumption of standing. The Developer attempted to do that here by relying on the Foggs' testi- mony in which the Foggs arguably struggled to describe their injuries. However, the court found that the Foggs had not acknowledged a lack of substantive evi- dence to establish a legally cognizable injury. Rather, the court found that they alleged a legally cognizable injury: "Although not versed in the terminology of zoning law, the Foggs' testimony clearly indicate[d] that one of their allegations of aggrievement was that construction of the house at 71 Spooner Road violated the density provisions of the zoning bylaw." As such, the Developer could only rebut the Foggs' presumption of standing by presenting independent evidence that would warrant a finding of no aggrievement. The court found the Developer failed to do so. See also: Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 849 N.E.2d 197 (2006). See also: Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 797 N.E.2d 893 (2003). Zoning News from Around the Nation MARYLAND Under legislation proposed by Governor Martin O'Malley and intended to curb growth in rural areas, limits would be placed on where septic systems could be installed. Counties would be required to designate land into four tiers: "The first and second would allow development and be on sewer systems or be in areas © 2012 Thomson Reuters 11