Upset About Your Easement? Why You Might Reconsider Turning to the Zoning Act for Relief

In its recent June 2016 decision in Picard v. Zoning Board of Appeals of Westminster, et al., the SJC held that “a claimed injury to a private easement right [was not] sufficient to confer standing to challenge a zoning determination made by a zoning board of appeals.”  The Court’s analysis centered on the meaning of a “person aggrieved” under the Massachusetts Zoning Act, G.L. c. 40A.  The decision sent a cautionary message to those who would consider challenging a ZBA decision for perceived infringements to their private easement rights: You just might not be the right kind of aggrieved.

A summary of the dispute: The plaintiff had an easement to cross abutting property to access a beach area on a pond.  The owner of the abutting property applied for a building permit to build a home.  Although the abutting property did not meet the town’s minimum buildable area and frontage requirements, the building commissioner determined that the property was a non-conforming lot with grandfathered status under the Zoning Act.  When the ZBA upheld the building commissioner’s finding, the plaintiff filed suit in Superior Court.

The SJC’s decision chronicled the standing requirements under the Zoning Act.  Below are three crucial excerpts:

“[O]nly a ‘person aggrieved’ has standing to challenge a decision of a [ZBA].”

“[T]he right or interest asserted… must be one that the Zoning Act is intended to protect….”

“[T]he analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be ‘impacted’ by such changes.”

Perhaps the most significant aspect of the Court’s decision, which affirmed the Superior Court’s dismissal of the plaintiff’s complaint for lack of standing, is its narrow interpretation of “interests protected by the applicable zoning scheme.”  The Court reasoned that “[t]he primary purpose of zoning… is the preservation in the public interest of certain neighborhoods against uses which are believed to be deleterious to such neighborhoods,” such as “density, traffic, parking availability, or noise.”  Is it possible that interference with a private easement could also raise these kinds of larger-scale, neighborhood-wide concerns?  The Court did not completely foreclose the possibility, but concluded that, at least in the case at hand, such interference was outside the “scope of concern of the Zoning Act.”  It’s worth noting that the Court also held that, even if the plaintiff’s claims were inside the Zoning Act’s “scope of concern,” the plaintiff still failed to substantiate his claimed injuries, since he offered nothing more than “his own opinion that a building would block access to the pond.”

A rare silver lining to be found in the SJC’s decision for those concerned about infringements to their private easements is that, as the Court pointed out in the final footnote of its decision, “nothing we say here deprives [the plaintiff] of his right to pursue a remedy at common law for any actual harm to his easement rights.”  In other words, if you’re in plaintiff’s shoes, you may be resigned to suing your neighbor, not the ZBA.

About Spencer Holland

Spencer is an associate in the Firm’s Land Use and Environmental Law Group and the Public and Municipal Law Group. The focus of Spencer’s practice is representing clients buying, selling, financing, and leasing commercial real estate. He represents a diverse group of clients, including startups, municipalities, life science companies, educational institutions, and regional developers. His experience includes the acquisition and disposition of commercial, industrial, residential, and mixed-use properties, as well as the negotiation of office, retail, and solar leases. Spencer also has experience advising clients on a broad range of land use matters, including zoning, permitting, and title issues.
This entry was posted in Easements, Uncategorized, Zoning and tagged , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s