Agenda - Planning Commission - 09/01/2016

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Zoning Bulletin July 25 2016 1 Volume 10 1 Issue 14 Citation:Bernardin v.AndoveNPlanningBd.,2016 WL 3019319(Mass. l Land Ct. 2016) MASSACHUSETTS (05/26/16)—This case addressed the issue of whether neighboring property owners had standing(i.e.,the legal right to bring the action)to challenge decisions related to an abutting property by a local planning board. The Background/Facts: CSH Andover,LLC("CSH")proposed a res- idential subdivision and development of an assisted living cornnunity on property owned by Robert and Lisa Mayes (the "Mayes") in the Town of Andover(the"Town").Most of the property on which CSH proposed the development was zoned Single Residence B (SRB) under the Town's bylaws. The Town's Planning Board (the "Planning Board") granted special pen-nits for elderly housing and earth movement to CSH for the project, and approved a definitive subdivision plan. Mark J. Bernardin, Nanette Conte, Isabelle Boulain, and Bernice Downs (collectively,the"Neighbors")were all neighbors and abutters of the property on which CSH proposed the development. The Neighbors C filed a legal action against the Planning Board,members of the Planning Board, the Town's building inspector, CSH, and the Mayes. The action asked the court to annul the Planning Board's Decisions granting the special permits and the subdivision approval. I'•+'+ CSH filed a motion for summary judgrnent, asking the court to find that there were no material issues of fact in dispute and to issue judgment in CSH's favor on the law alone. CSH urged the court to find that the Neighbors lacked legal standing, under Massachusetts statutory law— G.L. c. 40A, § 17, to bring the challenge to the Planning Board's deci- sions to grant special permits and the subdivision approval to CSH. The Neighbors had based their grounds of aggrievement on a claim that they would suffer direct injury to two interests protected by the Town's zoning bylaw: "(1) the construction of the project [would] be unreasonably detrimental to the established character of their neighbor- hood, changing it from purely residential to a mixed use neighborhood with a large commercial use and structure; and(2) they [would] suffer a diminution of their property values based on certain elements of the proj- ect, including lighting, noise, traffic, and degradation of a residential neighborhood into a mixed use neighborhood." CSH presented evidence—through five expert witnesses—of nonag- ` grievement with respect to those two grounds of standing (i.e., evidence showing that there would, in fact, be no detriment to the neighborhood character or diminution in the Neighbors' property values because of the proposed assisted living facility). DECISION: Motion for summary judgment denied. The Massachusetts Land Court, Department of the Trial Court, Essex County, held that summary judgment was inappropriate here because there was a genuine issue of material fact as to whether the Neighbors' i ©2016 Thomson Reuters 3 � i E