Posted by: Patricia Salkin | October 10, 2019

MA Appeals Court Finds Property Owner Located Across the Street from the Subject Property Had Standing to Challenge the Issuance of a Foundation Permit

This post was authored by Matthew Loeser, Esq. 

Plaintiffs Robert and Alison Murchison owned a single-family home in Sherborn. Defendants owned a vacant three-acre lot across the street from the plaintiffs’ property. Both lots were in Sherborn’s Residence C zoning district, in which each lot was required to have a minimum lot width of 250 feet. In 2016, Sherborn’s zoning enforcement office (“ZEO”) issued a foundation permit for a single-family residence on the defendants’ property. Plaintiffs filed a timely notice of appeal to the Sherborn zoning board of appeals, upheld the ZEO’s issuance of the permit. The plaintiffs then appealed the board’s ruling to the Land Court, which dismissed their case for lack of standing.


On appeal, plaintiffs claimed they were aggrieved because the lot width requirement protected their interest in preventing the overcrowding of their neighborhood and that this interest would be harmed by the proposed development. Here, Sherborn’s zoning bylaws at issue contained dimensional requirements that protect neighbors from overcrowding. As such, the court found that both the Zoning Act and Sherborn’s bylaws protected the interest against overcrowding, and the violation of same could give rise to plaintiffs standing.


Defendants argued that the plaintiffs could not be aggrieved by a violation of the density provisions of the bylaws since existing development was not “already more dense than the applicable zoning regulations allow.” The court rejected this contention and found that the question for standing purposes was whether there was a particularized non-de minimis harm resulting from the unlawful overcrowding. It further noted that this harm can be caused by a first violation as well as a second or subsequent one. Here, the harm to the property owner from having a house across the street closer to his or her own than is permitted by the density-protective bylaws was  different in kind from that suffered in an undifferentiated fashion by all the residents of the neighborhood, and was sufficiently particularized to support a claim of standing to challenge the alleged violation.


Lastly, the defendants argued that any harm was de minimis due to the large size of the lots at issue, pushing against what they describe as “the absurdity of arguing that homes on three-acres (or Plaintiffs’ thirteen-acres) can be too close together.” The court found that although the distance between the houses might not amount to overcrowding in an urban area, absent some constitutional concern, which the defendants did not argue existed, cities and towns are free to make legislative judgments about what level of density constitutes harm in various zoning districts and to codify those judgments in bylaws. Since the plaintiffs put forth credible evidence to establish standing, the court reversed the judgment of dismissal and remanded the case for further proceedings consistent with this opinion.


Murchison v Zoning Board of Appeals of Sherborn, 2019 WL 4747046 (MA App. 9/30/2019)


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