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Not In My Backyard - Abutters and Zoning Decisions

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Recent decisions in Massachusetts courts have tightened the requirements for challenging a zoning decision. The Massachusetts Supreme Judicial Court

found that in order to challenge a zoning decision, the adverse effect on the plaintiff of the zoning decision must be substantial enough so that there is no question that the plaintiff was actually harmed by the decision. By tightening the requirements, the court has limited zoning appeals to plaintiffs who are objectively harmed in an effort to reduce cases based solely on the premise, 'not in my backyard'.

Massachusetts law provides that, "any person aggrieved by a decision of the board of appeals or any special permit granting authority........ ......may appeal within twenty days after the decision has been filed in the office of the city or town clerk." An abutter reading this section would assume that if they appealed a decision of the Board of Appeals or Special Permit Granting Authority within twenty days, their appeal would be heard by the Court. Unfortunately for the abutter, it is not this straight forward. The courts in Massachusetts, as well as many other jurisdictions, have spent considerable resources litigating the meaning of the third word in the statute, "aggrieved". As a result, many courts do not even reached the merits of a claim regarding the decision of the Board of Appeals or Special Permit Granting Authority as the abutter fails to establish the pre-requisite 'standing' to bring their appeal.

An abutter in Massachusetts has a rebuttable presumption of 'standing', however, once the other party challenges the abutters' standing, the burden of proof shifts to the abutter to prove that they have been harmed by a decision of the board of appeals or special permit granting authority. To prove standing, an abutter must prove that the decision of the board of appeals or special permit granting authority will result in an injury to the abutter of a specific interest that the statute, ordinance or bylaw at issue intends to protect. The sufficiency of the injury and whether the injury is to a protected interest has been well litigated in Massachusetts.

If you receive notice of a hearing on a special permit or an appeal of a zoning decision, you are most likely an abutter and may have rights which need protection. Our firm can help you navigate the process at the town level and within the Massachusetts' court system.

 

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