Posted by: Patricia Salkin | February 13, 2011

Mass. Land Court Holds Adjacent Property Owners Lack Standing to Challenge ZBA Approval of Permit to Construct 8-Unit Cottage Colony on Cape Cod

In a dispute dating back to 1972 where the property at issue was, was deemed a nonconforming use but a variance was granted to “allow a change of a non-conforming use, remodeling of the Village store…and change the cottage colony in the rear of the property,” the adjacent property owner had begun to challenge the proposed changes in use to the land. The variance, which allowed for the present store plus 8 new cottages to replace the then-existing 7 provided that five remained for seasonal use only and two could be occupied on a limited year-round basis. The Sullilvans purchased the property in 2004 and in 2007 the zoning was amended and the land in question no longer allows retail stores or cottage colonies and requires a minimum 40,000 square feet per single family home. In 2007 the Sullivans’ request to allow the construction of 5 year-round homes in lieu of 8 seasonal cottages was denied, and in 2009 the building inspector issues building permits to the Sullivans for the construction of 8 cottages on the property. Hardy, the adjacent landowner, appealed to the zoning board which upheld the inspector’s decision. Hardy and Evans (whose property abuts Hardy’s) appealed and the zoning board alleged that they lacked standing to bring the claim.

 Under Massachusetts law, a person must be “aggrieved” to challenge a decision of the zoning board of appeals. A person is presumed to be aggrieved if they are a “party in interest,” but this presumption is rebuttable.  The Court determined that Hardy did not have standing because she did not present any credible evidence of harms.  While she alleged that the permit would cause a diminution in value to her property, the lighting would pose a problem, as would noise, traffic and lack of parking, the court found her arguments to be merely speculative, as she put no evidence in the record to prove any of the allegations. The Court noted that her contention related to noise was nothing but a “Not in My Backyard” defense.  Although Evans also claimed a diminution in value of his property, the court found his research and testimony as to comparable sales values were inadequate and inaccurate since he was not qualified as an expert. Therefore, he too lacked standing to challenge the decision.     

Hardy v Igo, 2011 WL 381950 (Mass. Land Ct. 2/4/2011).

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