Massachusetts Zoning Act Empowers Abutters

Adopted in 1975, the Massachusetts Zoning Act (“Zoning Act”) provides a set of statewide standards that govern municipalities’ promulgation and enforcement of zoning regulations. Yet for homeowners looking to renovate, the Zoning Act can make it easier than one would think for neighbors to challenge and potentially thwart a homeowner’s renovation plans. There are numerous renovations that homeowners may undertake “as of right,” without seeking special permission from local zoning authorities. It is only when a proposed renovation would violate the local zoning bylaws and the homeowner proposing the renovation seeks relief from those bylaws that neighbors acquire the power to challenge the project. This power is reflected in at least two aspects of the litigation process that are specific to zoning cases.

First, direct abutters benefit from a presumption that they would be “aggrieved,” or their rights would be infringed, by the renovation next door and, therefore, they have a legal right (“standing”) to appeal the decision of the zoning board approving zoning relief. Section 17 of the Zoning Act allows “any person aggrieved by a decision of the board of appeals or any special permit granting authority” to appeal that decision to a court. Although the term “person aggrieved” is not defined in the Zoning Act, Massachusetts courts have interpreted the term to presume that neighboring landowners are persons aggrieved and, therefore, they have a right to appeal. This presumption is rebuttable, however, and the homeowner may overcome it by offering evidence showing that the neighbor would not be aggrieved by the planned renovation. Nonetheless, it gives real power to abutters to drag homeowners into court and force them to expend resources to litigate.

Second, if the litigation progresses to a trial, the Zoning Act places the burden on the homeowner to prove that they were entitled to the zoning relief they received. In this way, even if the homeowner successfully obtained a special permit or variance from their local zoning board, they will be forced to justify the zoning board’s decision in order to keep their permit. This represents a significant departure from most other types of lawsuits, where the burden of proof rests on the party who brought the lawsuit, a dynamic that disincentivizes frivolous claims.

Both of these measures combine to make it quite burdensome for homeowners to overcome a challenge from a neighbor and retain their zoning relief. These difficulties likely stem from desirable policies of promoting statewide standardization of zoning practices and strict adherence to zoning bylaws. Yet an unintended consequence is that it may facilitate the conversion of personal gripes without legal merit into expensive lawsuits. So, what is a homeowner to do? Consider talking to neighbors before pursuing any renovations that may require zoning relief. By discussing the proposed work and any impact on neighbors beforehand, homeowners will give themselves the opportunity to adjust their plans to ameliorate any concerns and, by simply extending a hand, reduce the chance that animosity will lead to unwarranted lawsuits.


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