Case Study - Kenner v. Chatham Zoning Board of Appeals (Litigation) Background
A couple desiring to retire to their house along the waterfront in Chatham secured a special permit to reconstruct their home to address structural issues and to raise it on pilings above the flood plain to satisfy FEMA requirements. Inland neighbors appealed the permit to Land Court arguing that the marginal increase of seven feet in the height of the new house would obstruct their view of the water. The case raised the issue of whether and to what extent an abutter can base its right to bring a zoning appeal on a claim of diminished views. The case made its way to the Massachusetts Supreme Judicial Court, at which time Brennan, Dain, Le Ray, Wiest, Torpy & Garner, P.C. was retained by the homeowners and by the Chatham Zoning Board of Appeals to brief and argue the "standing" issue.
Outcome
The Supreme Judicial Court, in a groundbreaking decision reported at 459 Mass. 115 (2011), adopted the arguments advanced by our firm. Articulating a standard that may make it nearly impossible for an abutter to have standing based on diminished view from an expanded or reconstructed single family residence, the Supreme Judicial Court held that an abutter must establish that he or she will objectively suffer an injury caused by the proposed project that will be "substantial enough" such that "there can be no question that the plaintiff" is injured. The inland neighbors could make no such showing and as such, they lacked standing and their case had to be dismissed.
The SJC's decision received considerable media coverage. An op-ed piece in the Boston Globe stated, "this little case has the potential to reshape the landscape for builders and developers in Massachusetts." Getting an abutter appeal dismissed on standing grounds, the op-ed piece continued, can be the difference between a "nuisance lawsuit and a legitimate one." The victory before the Supreme Judicial Court was a great one for Brennan, Dain, Le Ray, Wiest, Torpy & Garner, P.C.'s appellate practice, won the case for the client, and set favorable precedent that provides greater protections for all of our real estate developer clients facing the prospect of opposition to zoning entitlements.