| Last month’s Massachusetts Supreme Judicial Court decision in Picard v. Westminster Zoning Board of Appeals exemplifies how difficult it has become for dissatisfied neighbors to appeal zoning decisions by local boards, even for neighbors that directly abut a proposed development.
Maurice and Colleen Picard lived across the street from a heavily wooded lot on Wyman Pond in Westminster. The lot did not conform to Westminster’s current zoning bylaw, because it lacked sufficient area and street frontage. The subdivision plan for the Picards’ neighborhood labeled the wooded lot as “beach area.” The Picards’ deed specifically gave them an easement to use the beach area, where the Picard family occasionally enjoyed picnicking and other recreation.
A corporation controlled by Peter Normandin owned the undeveloped lot. Normandin applied for a building permit to construct a dwelling there. He intended to maintain the Picards’ access to Wyman Pond while expanding and relocating the beach. Although Normandin’s lot did not meet current zoning requirements, the Westminster building commissioner determined that the lot was “grandfathered” as a legal nonconforming lot and therefore buildable.
Concerned that Normandin’s development would interfere with her easement, Colleen Picard contested the building commissioner’s determination at the local board of appeals. Two members of the three-member board voted to overturn the building commissioner’s determination, but the Zoning Act requires a unanimous vote by a three-member board to overturn, so the determination was upheld.
After Colleen Picard passed away, her husband Maurice continued the battle, appealing to the Superior Court. That court ruled against him, finding that he lacked standing to appeal the zoning decision. The court noted that Maurice’s arguments against Normandin’s project were based on potential harm to his easement rights. Such private rights are beyond the scope of neighborhood concerns protected by zoning laws, such as excessive building density, traffic and noise.
On Maurice’s appeal, the Appeals Court reversed the Superior Court’s judgment, holding that Maurice had standing to contest the project and Normandin’s property did not enjoy protected grandfathered status. The Supreme Judicial Court granted further appellate review.
‘Minimal’ Harm
The SJC confirmed that under the Zoning Act, only “persons aggrieved” by board of appeals decisions can contest the decisions in court. The SJC then cited prior SJC rulings that restrict who can claim such “aggrieved” status. For example, the SJC has held that plaintiffs claiming “aggrievement” must suffer an actual infringement of legal rights, and must show that the potential harm is one that the Zoning Act protects against. The potential harm cannot be only “minimal or slightly appreciable.”
Plaintiffs must offer credible evidence showing that they will be injured, not merely impacted, by the proposed development. Most significantly, the SJC characterized trial judges’ rulings on plaintiffs’ standing as findings of fact, which will not be overturned on appeal unless clearly erroneous.
The SJC acknowledged that Maurice Picard, as an abutter, was presumed to have the requisite standing. However, Maurice’s appeal did not address issues commonly associated with zoning, such as density, traffic and noise. He instead focused solely on how the development might impair his private easement rights.
Seizing upon this omission, Normandin rebutted Picard’s presumption of standing, because Maurice’s easement rights are not within the scope of interests protected by the local zoning bylaw. The SJC also observed that Picard’s concerns about loss of access rights were speculative and unsubstantiated. The SJC upheld the Superior Court’s decision that Picard lacked standing, and dismissed his appeal under the Zoning Act.
Although Picard’s zoning appeal was unsuccessful, he is not without recourse against Normandin’s project. The SJC mentioned in a final footnote (which is where courts often bury their most insightful comments) that he can pursue claims against Normandin for any actual harm to his easement rights. Thus before Normandin breaks ground on his new home, he should confer with Maurice about how best to develop the lot while ensuring Maurice’s rights.
Christopher R. Vaccaro is a partner at Dalton & Finegold in Andover. His email address is cvaccaro@dfllp.com.
