Ocean and waterfront views are some of the most valuable and fought-over property amenities in Massachusetts. The difference in price between a property with unobstructed ocean view versus one without — even on the same street– can be significant. Massachusetts zoning law books are filled with petty and expensive fights about even the most minimal obstructions of ocean views.
Kenner v. Chatham Zoning Board of Appeals (click to download), recently decided by the Massachusetts Supreme Judicial Court, falls into that category, and provides current guidance on one of the most important aspects of zoning challenges, a legal requirement called “standing.”
Blocked Ocean Views
For anyone practicing in the zoning trenches, it comes as no surprise that Brian and Carol Kenner were none to pleased when the Chatham Zoning Board of Appeals issued a special permit to their neighbors Louis and Ellen Hieb to demolish their existing small cottage and rebuild their house on Chatharbor Lane–with an increase in height of 7 feet and corresponding obstruction of their Atlantic Ocean view. The Kenners, who live directly across the street, claimed that the Heib’s new home would block the light and ocean breezes to their deck and would lead to an increase in traffic in the neighborhood.
But after visiting the property, Land Court Judge Charles W. Trombly found that the Kenners failed to provide credible evidence that they would be harmed by the project. Their contention that the increased height would block light and ocean breezes or add to traffic were speculative or generalized opinions, the judge said.
The case went up to the Supreme Judicial Court where Justice Francis Spina ruled that unless a town’s zoning bylaw specifically provides that a zoning board should take into account the proposed structure’s visual impact on abutters, aesthetic view concerns “are not a basis for standing.” Chatham’s zoning bylaw indicates standing can be demonstrated if the plaintiff shows both “a particularized harm to the plaintiff’s own property and a detrimental impact on the visual character of the neighborhood as a whole,” Spina wrote, and the Kenners failed to satisfy this burden.
Harm, Not Just Impact, Required For Standing
My fellow counselor and friend, Daniel Dain, Esq. who represented the Town of Chatham, commented to Massachusetts Lawyers Weekly that the SJC clarified for the first time the specific distinction between harm and impact in standing cases, where views, noise and traffic are central. “It has to be harm, not just impact. All impact is not harm,” Dan said.
Dan’s synopsis of the decision is spot on. Standing is always a threshold battle in zoning appeals. Abutters who challenge permits need to gather real, hard evidence — from traffic engineers and other experts — to prove the project will have a real and substantial impact on their protected property rights. Here, a minimal 7 foot increase in view obstruction just wasn’t good enough to prevent a neighbor from rebuilding his oceanview home.
Richard D. Vetstein, Esq. is an experienced Massachusetts Zoning and Special Permit Attorney. For further information you can contact him at firstname.lastname@example.org.