Supreme Judicial Court of Massachusetts, Worcester
Heard: February 9, 2016.
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
M. Bovenzi for 3333, Inc.
A. CampoBasso for the plaintiff.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
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unpublished decision pursuant to its rule 1:28, reversed the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.
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.
Inc., owns the parcel of land identified on the Laurie Lane
Plan as the "beach area" (locus). 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 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,
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.
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. 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. 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.
fundamental legal principles governing the jurisdictional
requirement of standing in zoning appeals are well
"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 ...