Following the granting of a variance for the construction of an elderly care facility in an area zoned for single-family residents, ten plaintiffs living in the surrounding area who opposed the variance appealed. The zoning board contended that plaintiffs lacked standing to bring the action, and both filed summary judgment motions.
The court began with an analysis of who would generally have standing to bring this sort of action, noting that any party in interest has a presumption of standing as a person aggrieved by the decision. Persons of interest include property owners abutting, opposite, or abutting an abutter of the variance. Plaintiffs claimed that they are entitled to a presumption of standing because, according to their affidavits, they are both abutters and adjacent abutters. Since the defendant did not challenge this contention for purposes of this motion, the court assumed plaintiffs have a presumption of standing. The court noted, however, that plaintiffs offered no documentation supporting this presumption.
Next, the court indicated that this presumption is rebuttable by the defendants, and that the court considers plaintiffs’ purported aggrievements. Aggrievement, says the court must be more than impact or minimal harm, but is a showing of injury or harm because of changes. Here, defendants showed that plaintiff will not be able to show injury to support a claim of aggrievement.
The burden shifted back to plaintiff to prove they have standing. Plaintiffs’ assertions and affidavits are insufficient, thus, they were required to submit expert evidence to support their claim. Here, plaintiffs submitted an affidavit of an expert who claimed that the building would increase traffic in the area. During the expert’s deposition, however, he admitted that traffic flow would not be significantly impacted. Since plaintiffs did not submit competent evidence to show they will suffer harm from the board’s decision, plaintiffs lacked standing to bring this action.
Nihtila v. City of Brockton Zoning Bd. Of Appeals, 2011 WL 3925596 (Mass. Land Ct. 7/29/2011)
