Agenda - Planning Commission - 08/04/2011

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June 25, 2011 I Volume 5 I No. 12 Zoning Bulletin interests under the bylaw, as required for standing under Massachu- setts statutory law (Mass. G.L. c. 40A, § 17). The Marhefkas appealed. DECISION: Reversed, and matter remanded. The Appeals Court of Massachusetts concluded that the Marhe- fkas "did assert a competent basis for standing." The court explained that under the Zoning Act, Mass. G.L. c. 40A, % 17, only a "person aggrieved" may appeal a decision of a zoning board. In order to qualify as a "person aggrieved," said the court, one must assert "a plausible claim of a definite viola- tion of a private right, property interest, or legal interest." More- over, "[t]he right or interest asserted must be one that the [bylaw] under which a plaintiff claims aggrievement intends to protect." Such a protected interest, further explained the court, can arise from: the bylaw's express language, or implicitly from the intent of the bylaw's provisions. Here, the court noted that the applicable bylaw "extensively regulate[d] the dimensions of the lots and density of use. The front, rear, and side yard criteria [were] extensive." The bylaw defined "open space" as "[t]he portion of the lot area not covered by any structure and not used for drives, parking, or storage ...." The by- law also described "yard" as: "[a]n undeveloped, naturally veg- etated and/or landscaped strip ... unobstructed from the ground upward and unoccupied except by specific structures and/or uses allowed by the provisions of [the bylaw]." The bylaw specifically noted: "Said yard is intended to provide aesthetic value as well as serve as a spatial and visual buffer between lots." Disagreeing with the Land Court judge, the appellate court found that the bylaw clearly "identifie[d] open space and describe[d] `yard' in such a manner as to make protection of view an implicit interest protected by the density and dimensional provi- sions of the by-law." The court found that "[a]s a matter of com- mon sense, the yard and setback requirements ha[d] a purpose to preserve open space, implying the ability to see through the open space." As such, the court found that the Marhefkas' claims of di- minished water view did allege a violation of an interest protected by the bylaw; this alleged view injury related to protected density and dimensional interests. Finding the Marhefkas had, in alleging the injury to their water view, alleged an injury of the density and dimensional interests protected by the bylaw, the court concluded that the Marhefkas "did assert a competent basis for standing." 10 © 2011 Thomson Reuters