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Picard v. Zoning Board of Appeals of Westminster

Supreme Judicial Court of Massachusetts, Worcester

June 17, 2016

MAURICE PICARD, personal representative, [1]

          Heard: February 9, 2016.

         Civil action commenced in the Superior Court Department on August 23, 2 011. The case was heard by Robert B. Gordon, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Thomas M. Bovenzi for 3333, Inc.

          Peter A. CampoBasso for the plaintiff.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          CORDY, J.

         Is a claimed injury to a private easement right sufficient to confer standing to challenge a zoning determination made by a zoning board of appeals? In the circumstances of this case, we conclude that it is not. Maurice Picard, as the personal representative of his wife's estate, commenced this action in the Superior Court after the zoning board of appeals of Westminster (zoning board) upheld the building commissioner's determination that property abutting his, owned by the defendant, 3333, Inc., enjoyed grandfathered status under the Westminster zoning by-law. After a bench trial, a judge in the Superior Court dismissed Picard's complaint for lack of standing. The Appeals Court, in an unpublished decision pursuant to its rule 1:28, reversed the judgment as to standing and concluded that the property in question did not enjoy grandfathered status under the Westminster zoning by-law. Picard v. Zoning Bd. of Appeals of Westminster, 87 Mass.App.Ct. 1125 (2015). We granted further appellate review, limited to the standing issue. We affirm the judgment of the Superior Court.


         The trial judge found the following facts, which we occasionally supplement with undisputed facts from the record. See Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383 (2009) (on appellate review, judge's factual findings will not be set aside unless clearly erroneous or unless there is no evidence to support them). Picard is the owner and occupant of certain property on Laurie Lane in Westminster (town). Picard's property is identified as lots 34 and 43 on a plan referred to by the judge as the "Laurie Lane Plan." The deed that conveyed the property to Picard's late spouse also contained within it "the right to use in common with others a certain area located on Laurie Lane and designated as beach areas [sic] on [the Laurie Lane Plan]." The judge specifically found that the right to use the "beach areas" was intended to afford residents of the neighborhood passage to Wyman Pond.[3]

         3333, Inc., owns the parcel of land identified on the Laurie Lane Plan as the "beach area" (locus).[4] The locus has 32, 500 square feet of area and 101.51 feet of frontage on Laurie Lane. Under the Westminster zoning by-law, which was adopted in 1974 and amended in 1978, the minimum buildable area is 50, 000 feet and the minimum frontage is 150 feet. The locus is heavily wooded[5] and slopes downhill from the road about twenty-five feet to the water but provides the intended access to Wyman Pond. Picard's property abuts the locus across Laurie Lane, but Picard is unable to view the beach from his house. In connection with the right of access granted in his deed, Picard and his family have occasionally used the locus for purposes such as picnicking, ice skating, and boating.

         Peter Normandin, the president of 3333, Inc., plans to build a residence on the locus. At trial, he testified that he did not wish to impair access to the pond and that he planned to clear some of the land and move the beach to a different location on the locus. This location would provide a larger beach and afford better access to Wyman Pond. The trial judge credited this testimony.

         In order to construct the residence, Normandin applied for a building permit. The town building commissioner determined that the locus had grandfathered status as a nonconforming lot under G. L. c. 40A, § 6.[6] Picard's decedent applied for a hearing before the zoning board. The zoning board held a public hearing, after which it upheld the building commissioner's determination.[7] This action for judicial review pursuant to G. L. c. 40A, § 17, ensued. The trial judge determined that Picard had not demonstrated that the construction proposed by 3333, Inc., would cause him any injury within the scope of concern of the Zoning Act and that he therefore lacked standing.[8]


         The fundamental legal principles governing the jurisdictional requirement of standing in zoning appeals are well established:

"Under the Zoning Act, G. L. c. 40A, only a 'person aggrieved' has standing to challenge a decision of a zoning board of appeals. G. L. c. 40A, § 17. See Barvenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 131 (1992) (status as 'person aggrieved' is jurisdictional prerequisite to maintaining action under G. L. c. 40A, § 17). See generally M. Bobrowski, Massachusetts Land Use and Planning Law § 11.03[A], at 343-353 (3d ed. 2011). A 'person aggrieved' is one who 'suffers some infringement of his legal rights.' [Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996)], citing Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430 (1949). Of particular importance, the right or interest asserted by a plaintiff claiming aggrievement must be one that the Zoning Act is intended to protect, either explicitly or implicitly. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 120 (2011) . . .; [Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 27-28 ...

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