On Brookline

Part I: Are You Aggrieved?

by Arshag Mazmanian

Let’s say you own a lovely home in Brookline and you and your family enjoy the neighborhood. You receive a notice in the mail of a public hearing before the Zoning Board of Appeals (“ZBA”) that will consider a special permit and/or variance for a site with respect to which you are an abutter or are an abutter to an abutter; or you learn of such a public hearing from a legal ad in the Brookline TAB. You check into the matter and decide to attend the public hearing to find out more about the project to determine how it might impact you, your family, your home and the neighborhood. In fact, because of some concerns, you speak up at the public hearing to voice them and perhaps support neighbors who also have expressed their concerns.

Let’s say the ZBA makes its decision at the public hearing granting the special permit and/or variance sought by the petitioner. You request that you be notified when the ZBA written decision has been filed so that you may review it. You may join with some neighbors to consider appealing the written decision.

Let’s say that after reviewing the written decision you and your neighbors consult with an attorney to consider appealing what appears, even to the attorney, to be an egregious decision that is not in compliance with the Zoning By Law and/or the Zoning Statute, G.L. Chapter 40A. So it would appear that you and your neighbors may have a “slam dunk” appeal that you could take to the Norfolk Superior Court or the Land Court pursuant to Section 17 of Chapter 40A.

Not so fast! Assuming that a satisfactory fee arrangement can be made with the attorney for an appeal, you are not home clear. The petitioner’s attorney will go all out to demonstrate that you and your neighbors, as plaintiffs appealing, are not persons “aggrieved” by the ZBA decision. For if the petitioner’s attorney can establish that you are not a person “aggrieved” under Section 17, you cannot prevail no matter that the written decision is egregious (as assumed above).

Your attorney will try to explain what it means to be a person “aggrieved” and how narrowly both the MA Appeals Court and the Supreme Judicial Court have construed the term person “aggrieved” in recent years; that even an abutter may be determined by the Court not to be a person “aggrieved.”

ZBA members learn quickly that the narrow meaning of a person “aggrieved” will, as a practical matter, result in very few ZBA decisions issuing special permits and/or variances being appealed, and that even those that are have a very good chance of being upheld no matter how egregious if the petitioner’s attorney convinces the Court that the appealing party is not a person “aggrieved.”

Under the circumstances, the costs of an appeal of even an egregious ZBA decision may be out of proportion to the chances that you may be determined not to be a person “aggrieved” by the ZBA decision.

For this reason, it is important that ZBA members respect the provisions of the Zoning By Law and Chapter 40A. If they fail to do so, then more and more egregious ZBA decisions may be handed down. This failure may benefit developers, but it has a negative effect on the integrity of zoning in a community.

For those interested in this subject, I recommend Mark Bobrowski’s “The Zoning Act’s ‘Person Aggrieved’ Standard: From Barvenik to Marashlian,” 18 Western New England Law Review 385 (1996). Also, those curious might “google” major area law firms for their websites that may address their expertise in representing developers in court in challenging the status of appealing parties as not being persons “aggrieved.”