Posted by: Patricia Salkin | March 23, 2015

MA Land Court Holds Plaintiffs were not Aggrieved Persons and Therefore Lacked Standing in Challenge to a Special Permit for Senior Housing

Plaintiffs Kevin and Maryellen Luttrell (the “Luttrells”) and Matthew and Lisa Braccio (the “Braccios”) filed this appeal, pursuant to G.L. c. 40A, § 17, of a decision of the Southborough Zoning Board of Appeals (the “Board”), granting a special permit to defendant William Depietri (“Depietri”) for the construction of a fifteen-unit age-restricted multi-family dwelling (the “Project”). The plaintiffs, abutters to the proposed project, alleged that the Board had no authority to issue the special permit under the provision of the Southborough Zoning Bylaw under which the Board purported to act.  Instead, they argue that a special permit for “multifamily housing for the elderly, owned by a public or a nonprofit community housing organization” can only be issued under Section 174–8.2B(8) of the Bylaw.

As abutters to the proposed development on the Property, the plaintiffs enjoy a rebuttable presumption that they are aggrieved persons entitled to challenge the grant of the special permit by the Board, pursuant to G.L. c. 40A. Arguing against plaintiffs’ presumptive standing as aggrieved persons, the defendants argued that: (1) there will be no measurable injury to the plaintiffs’ properties from the Project as compared to the already-approved (but unbuilt) fifteen-unit comprehensive affordable housing development approved under G.L. c. 40B (the “comprehensive permit plan”); and (2) the Project has been designed so that there will not be any impact on the plaintiffs’ properties as a result of the construction of the Project.   As to the first argument, Depietri alluded to differences between the two plans, including increased setbacks of the leaching field and the units on the Project plan, absence of a play area on the Project plan, a simpler and easier-to-maintain drainage system for the Project plan, a reduced traffic impact as a result of the Project as compared to the comprehensive permit plan, and reduced density because of the larger parcel on which the Project is located. This argument was found by the court to not to be dispositive of the standing issue, and therefore insufficient to rebut the presumption of standing.

The defendants did, however, show that the Project would not impact the plaintiffs due to their distance away from the nearest units of the Project. Furthermore, the defendants offered a “traffic impact assessment” concluding that post-development, Oregon Road, the road on which the Project and both plaintiffs’ homes are located, would be at less than one tenth its maximum capacity at peak travel times, the stopping and intersection sight distances from the Project driveway will significantly exceed the minimum standards for sight distance. Because the plaintiffs were required to establish a particularized injury to a legally cognizable interest, the court found that they did not accomplish this by comparing the Project to another type of project that might have been approved. Thus, the court held the plaintiff’s failed to show standing.

Luttrell v Bartolini, 2015 WL 1130989 (MA Land Ct 3/11/2015)

The opinion can be accessed at:

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