By Richard D. Vetstein, ESQ
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
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
My colleague, 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.
View more from The Massachusetts Real Estate Law Blog
Mr. Vetstein has represented clients in hundreds of lawsuits and disputes involving business, real estate, construction, condominium, zoning, environmental, banking and financial services, employment, and personal injury law.
In real estate matters, Mr. Vetstein handles residential and commercial transactions and closings. In land use, zoning, and licensing matters, Mr. Vetstein offers his clients an inside perspective as a former board member of the Sudbury Zoning Board of Appeals. Mr. Vetstein has an active real estate litigation practice, and was a former outside claims counsel for a national title company.
Drawing on his own business degree and experience, Mr. Vetstein assists his business clients with new business start ups, acquisitions, sales, contract, employment issues, trademarks, and succession planning. Mr. Vetstein also litigates, arbitrates and mediates a wide variety of commercial disputes.
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