MISC 325933

January 7, 2009


Trombly, J.


This action was commenced by plaintiffs, Brian Kenner and Carol Kenner, on July 10, 2006, as an appeal pursuant to G.L. c. 40A, § 17. The plaintiffs seek to reverse a decision of the defendant, Town of Chatham Board of Appeals, which granted a special permit for the demolition, reconstruction, and expansion of a structure on a certain parcel of real property known and numbered as 25 Chatharbor Lane in South Chatham, owned of record by defendants, Louis Hieb and Ellen Hieb (the Hiebs).

The Court (Trombly, J.) took a view of each party’s property on March 25, 2008 and a trial was held beginning the same day at Barnstable Superior Court. Six witnesses testified and fourteen exhibits and one chalk were admitted into evidence. At the conclusion of the first day, counsel for the Hiebs requested a continuance to allow him to produce his own expert to rebut the plaintiffs’ evidence of diminution of value. The Court allowed this continuance. On March 31, 2008, defendants informed the Court that they no longer wished to introduce further testimony. Accordingly, on April 9, 2008, the Court determined that the trial was ended. Post-trial memoranda were filed by plaintiffs on June 16, 2008 and by defendants on June 18, 2008.

After reviewing the record before the Court, I find the following facts:

1. Defendants, Louis Hieb and Ellen Hieb, are the owners of record of a certain parcel of real property, known and numbered as 25 Chatharbor Lane in Chatham (the Hieb Property).

2. Plaintiffs, Brian Kenner and Carol Kenner, are the owners of record of a certain parcel of real property, known and numbered as 18 Chatharbor Lane in Chatham (the Kenner Property).

3. The Hieb Property is ocean-front property, abutting the Atlantic Ocean to the North. The Kenner Property lies directly across Chatharbor Lane to the North of the Hieb Property such that the Hieb Property lies between the Kenner Property and the Atlantic Ocean (a decision sketch is attached hereto as Exhibit A).

4. Currently and at all relevant times to this litigation, the Hieb Property contained a dwelling structure (the Current House).

5. The Current House has always had a footprint of approximately thirty (30) feet by twenty-two (22) feet and approximately a nine (9) foot, front yard setback.

6. The Hieb Property lies within the R-20 Residential Zoning District and the Coastal Conservancy Overlay Zoning District. The Zoning Bylaws of the Town of Chatham require a single family residential building lot to:

a. Contain a minimum of twenty thousand (20,000) square feet of buildable upland;

b. Limit building coverage to fifteen percent (15%) of the buildable upland;

c. Have a minimum of twenty-five (25) feet of front yard setback; and

d. Have a minimum of fifty (50) feet setback from property lines.

7. Prior to November 23, 1999, the Hieb Property was undivided from and part of a condominium development. The current house was then known as Unit 1 as depicted on a Condominium Site Plan, dated September 21, 1981, and recorded at the Barnstable County Registry of Deeds in Book 357, Page 41.

8. On November 23, 1999, the Hieb Property was converted into a single-family, residential lot by the recording of an approval-not-required plan (the ANR Plan), pursuant to G.L. c. 41, §81L, at the Barnstable County Registry of Deeds in Book 553, Page 61, which depicts the property as Lot 1.

9. The Current House was not altered, expanded, or moved.

10. The Hieb Property:

a. Contains approximately two thousand, two hundred (2,200) square feet of buildable upland, within the meaning of the bylaw; [Note 1]

b. The Current House covers approximately thirty percent (30%) of the lot area;

c. Maintains a nine (9) foot front yard setback; and

d. Maintains less than the requisite fifty foot setback from property lines.

11. The Hiebs applied for a special permit for demolition, reconstruction, and expansion of the Current House (the Proposed Project).

12. The Proposed Project includes plans to raze the Current House and construct a new house, while maintaining the same location footprint of the Current House (the New House).

13. The New House will have an increased height of seven (7) feet as compared to the Current House.

14. On June 8, 2006, the Zoning Board of Appeals of the Town of Chatham conducted a public hearing on the Hiebs’ application and voted to grant the Special Permit. The Zoning Board rendered a written decision and filed it with the Chatham Town Clerk on June 21, 2006.



As a threshold matter, defendants raise the issue of whether plaintiffs have standing to bring this action. A property owner deemed by the town to be affected by a petition concerning the use of real property is, pursuant to G. L. c. 40A, § 17, an “aggrieved person.” Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1958). Under G. L. c. 40A, § 11, such a person, is presumed to have standing to seek judicial review of a discretionary board’s decision. Id.; Waltham Motor Inn. Inc. v. LaCava, 3 Mass. App. Ct. 210 , 214 (1975). This presumption is rebuttable, however, and “[…] recedes when a defendant challenges a plaintiffs’ status as an aggrieved party and offers evidence to support his or her challenge.” Watros v. Greater Lynn Mental Health & Retardation Assoc.. Inc., 421 Mass. 106 , 111 (1995). Once rebutted, plaintiff must put forth credible evidence to substantiate claims of injury to his or her legal rights.

In order to demonstrate standing, a plaintiff must produce evidence of credible, “[…] direct facts and not […] speculative personal opinion—that injury is special and different from the concerns of the rest of the community.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006). The harm must be particularized to the plaintiff, and “[…] not merely reflective of the concerns of the community.” Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003). Accordingly, “[…] a general civic interest in the enforcement of zoning laws […] is not enough to confer standing.” Amherst Growth Study Committee, Inc. v. Bd. of Appeals of Amherst, 1 Mass. App. Ct. 826 , 826-827 (1973); Chongris v. Bd. of Appeals of Andover, 17 Mass. App. Ct. 999 , 999 (1984); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 495-96 (1989).

A plaintiff need not show a substantial likelihood of harm greater than that which could result from a use of the property permissible as of right. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 724 (1996). However, to have standing, plaintiff must be able to demonstrate more than mere speculation, “that there has been some infringement of his legal rights.” Denneny, 59 Mass. App. Ct. at 211. Conjecture, personal opinion, and hypothesis, are not sufficient to substantiate standing. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005). The plaintiff must provide factual support for his or her claim of particularized injury, sufficient for “[…] a reasonable person […] to conclude that the claimed injury likely will flow from the board’s action.” Id.; see Marashlian, 421 Mass at 724; Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994).

In the present case, plaintiffs are abutters and aggrieved persons and, accordingly, benefit from the presumption of standing from the outset. However, defendants have challenged plaintiffs’ standing. Defendants allege that plaintiffs cannot show that the proposed project will injure any private legal interest, particular to plaintiffs. The plaintiffs’ complaint raises the following issues: (1) the increased height of the new house will block light; (2) the new house will block ocean breezes; (3) the new house will cause increased traffic in the neighborhood; and (4) the increased height of the new house will block the plaintiffs’ view of the ocean.

It is less than clear to the Court how the blocking of light and air, in this case, is a particularized injury to plaintiffs. In general, the average home does not present a sufficient obstacle to light and air to injure a neighboring property. The shadows cast by such a house are usually not significantly detrimental in general, nor singularly detrimental to an individual neighboring property. Similarly, the air blocked by such a house is not significant or so focused on a neighbor. Shadows move with the changing angles of the sunlight, throughout the day, and air, even ocean breezes, are dynamic, flowing around the usual house. Plaintiffs have presented only generalized concerns and speculation as to the impact of the Proposed Project on their property and the Court is not persuaded that the circumstances are distinguishable from the usual case.

Plaintiffs allege that they are particularly harmed by the height of the Proposed Project because Mrs. Kenner maintains a garden on the southern border of the Kenner Property which will be overshadowed by the new house. Although the new house will be seven feet higher than the current house, as previously stated, the house’s shadow will not remain only on the Kenner Property, but will move from West to East as the sun rises and sets. Any harm caused by the shadow of the new house is a general injury of the neighborhood and not particular to plaintiffs.

It is similarly not clear to the Court how the Proposed Project will increase traffic in the neighborhood. Although the new house is an increase in size from the current house, it would decrease from four bedrooms to three. Plaintiffs’ apparent argument is that the new house, as proposed, would be more luxurious and esthetically pleasing, rendering it more marketable to summer tenants than the current house, thereby increasing traffic on Chatharbor Lane. This allegation again appears to be no more than speculation and constitutes only a general injury to the neighborhood rather than a specific injury to plaintiffs. More importantly, this is not a harm that would necessarily result from the Proposed Project, because defendants currently have the right and ability to rent out their house in increased numbers, and plaintiffs have not shown that defendants have plans to increase the number of summer tenants upon completion of the new house. The fact that the property may be in higher demand after the completion of the proposed project does not persuade the Court that the new house will be the cause of increased traffic.

Plaintiffs also make a point of describing the narrow nature of Chatharbor Lane and their belief that the retaining wall proposed along the northern border of the Hieb Property abutting the lane will prevent cars from pulling over on that side of the road when passing each other. Plaintiffs argue that cars will be forced, instead, to pull over onto the Kenner Property to avoid traffic. The difficulties facing drivers and neighbors on Chatharbor Lane is an independent and ongoing problem distinct from the issues in this case. Although it is possible that if the wall were built, two cars must share the lane at the point between the two properties, with the westbound car pulling onto the Kenner Property in order to pass, plaintiffs have not raised this allegation above the level of speculation. Accordingly, the Court does not find standing on this ground.

Plaintiffs’ final issue does assert that the Proposed Project will cause them individualized harm. Plaintiffs argue that the increased height of the new house will block the view of the ocean from the screened porch and dining room of the Kenner Property, because the Hieb Property lies between the Kenner Property and the Atlantic Ocean. Plaintiffs further contend that the problem will be exacerbated by the fact that the new house will be set back from the northern border of the Hieb Property only nine (9) feet, rather than the required twenty-five (25), thus allowing the increased height to block more of the plaintiffs’ view than it would were it set further back.

“Generally, concerns about the visual impact of a structure do not suffice to confer standing, […].” Martin v. The Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146 (2001); see Harvard Square Defense Fund, Inc., 27 Mass. App. Ct. at 493. However, where a city or town’s zoning bylaws, themselves, provide that the municipal board should take into consideration the visual consequences of any proposed structure, this “[…] defined protected interest may impart standing to a person whose impaired interest falls within that definition.” Martin, 434 Mass. at 146; see Monks, 37 Mass. App. Ct. at 688-89, citing Circle Lounge & Grille, Inc. v. Bd. of Appeals of Boston, 324 Mass. 427 , 431 (1949).

In the present case, section V.B. of the Chatham Bylaws sets forth the criteria that the Zoning Board must consider when granting a special permit, and includes, the impact on views, vistas, and streetscapes. However, in cases where courts have found visual impact sufficient to confer standing, the plaintiff suffered from a strong presence of the offending structure or an almost complete deprivation of his or her former vista. See Monks, 37 Mass. App. Ct. 685 (cell tower was visible from most windows of plaintiffs’ home). This is not the case here; the Proposed Project includes a new house only seven (7) feet higher than the current house. The footprint and setback of the house remain unchanged. In addition, the evidence has demonstrated to the Court that the increase in height of the new house will have a very minimal impact on the plaintiffs’ view. In the opinion of this Court, any impact is de minimus and is not sufficient to confer standing on plaintiffs.

Plaintiffs contend also that the Proposed Project will devalue their property. “A claim of diminution of property values must be derivative of or related to cognizable interests protected by the applicable zoning scheme.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 31-32 (2006); see Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495 , 503-504 (1940) (zoning legislation “is not designed for the preservation of the economic value of property, except in so far as that end is served by making the community a safe and healthy place in which to live”). Without this rule, virtually any development of real estate would have the potential to confer standing on an abutter to challenge on the grounds of diminution of value, because real estate values are so easily influenced. See Standerwick 447 Mass. at 32. “To confer standing in such circumstances would permit any plaintiff to make an ‘end run’ around the rigorous standing requirements we have consistently recognized.” Id. ; see Circle Lounge & Grille, Inc., 342 Mass. at 431.

Although plaintiffs attempt to derive the alleged diminution in value of the Kenner Property from the loss of ocean view as a result of the Proposed Project, as previously discussed, this Court finds that any loss of such view is not sufficient to grant plaintiffs standing. The loss of view is de minimus, and the Court is not persuaded that the diminution of value of neighboring property is not similarly insignificant. The plaintiffs’ expert testifies that the loss of view owing to the Proposed Project will devalue the Kenner Property anywhere from sixteen (16%) percent ($160,000.00) to thirty-six (36%) percent ($360,000.00). However, the Court does not find plaintiffs’ expert to be credible in that his analysis failed to compare houses in the immediate neighborhood. The subject properties of that analysis were all inland with no ocean view to begin with, and the analysis determined the diminution in value of houses with views becoming completely obstructed. The Kenner Property stands to lose a portion of their ocean-view above the Hieb’s Current House, and still lower than the tree line on either side of that house. The analysis is unsound and speculative, and this Court is not prepared to pronounce law that allows a neighbor to bring an action based on diminution in value deriving from such an insignificant loss of view.


Even if the Court were to find that plaintiffs had standing to bring this suit, they have failed to show that the Zoning Board exceeded its authority in granting defendants’ special permit for the Proposed Project. Plaintiffs claim that the decision of the Zoning Board is against the clear weight of the evidence because the Proposed Project will have substantial detrimental impacts on the neighborhood. As previously discussed, the plaintiffs’ claims of harm to the neighborhood are largely speculative. The Zoning Board found that the Proposed Project was modest in size and architectural design, increasing the house only in height while maintaining the same footprint and location on the lot. The board further found that the new house would not have a detrimental effect upon views, vistas, or the streetscape of the neighborhood, or be more detrimental in general to the neighborhood than the existing house. Plaintiffs contend that their evidence of harm to the neighborhood is so clear that a reasonable fact finder could not find against it. The Court disagrees. The Zoning Board’s findings appear to the Court to be reasonable, and I see no reason to overrule them.

Plaintiffs also claim that the violations of the zoning bylaws that exist on the Hieb Property are not preexisting, nonconforming because they first occurred on November 23, 1999 when defendants recorded the approval-not-required plan (ANR Plan), converting the Hieb Property from a condominium unit into a single-family, residential lot. The plaintiffs’ argument continues that these violations occurred after enactment of the current subdivision rules and regulations and that the lot is therefore not a lawful nonconforming structure but an unlawful structure with no zoning protection afforded to it. The Court does not agree.

The exception to G.L. c. 41, § 81L was intended to provide special protection for residential structures in existence before the adoption of the subdivision control law in each locality. Citgo Petroleum Corp. v. Planning Bd. of Braintree, 24 Mass. App. Ct. 425 , 427 (1987); Norwell Arch, LLC v. Norwell Zoning Board of Appeals, 12 LCR 208 , 209 (2004) (Misc. Case No. 285113) (Trombly, J.). Similarly, single and two-family residential structures enjoy preferential zoning treatment under the second exception to G. L. c. 40A, § 6. This clause provides residential structures preferential zoning treatment when the proposed changes to a nonconforming residential structure will not increase its nonconforming nature. Goldhirsh v. McNear, 32 Mass. App. Ct. 455 , 458-61 (discussing board of appeal's review of nonconforming structures under G. L. c. 40A, § 6); Norwell-Arch, LLC, 12 LCR at 209. “To fully protect single and two-family residential structures, G. L. c. 41, § 81L, and c. 40A, § 6, must be read together.” Id.

Such a result is entirely consistent with the well settled rule that just because a lot can be divided under G. L. c. 41, § 81L, does not mean that the resulting lot will be buildable under the zoning ordinance. Id. at 210; Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 , 603 (1980). See also Bisson v. Planning Bd. of Dover, 43 Mass. App. Ct. 504 , 506 (1997) (planning board's review of ANR plan confined to determining whether plan shows a subdivision).

In the present case, at the time the subdivision control laws went into effect, the house on what is now the Hieb Property, along with the other units of the condominium development, were in existence. The Hieb Property, therefore, fell under the exception of G.L. c. 41, § 81L when the Hieb Property lot was created on November 23, 1999. As a result, the new lot was lawfully nonconforming in that it did not conform to the minimum lot size, maximum coverage, frontage, and setback requirements for a single-family residential lot in the R-20 Residential and Coastal Conservancy Overlay Zoning Districts pursuant to the Town of Chatham Protective Zoning Bylaw. This lot is lawfully nonconforming and, therefore, falls under the second exception to G.L. c. 40A, § 6.

As set forth in Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 21-22 (1987), the Appeals Court held that an application for changes to a nonconforming residential structure “[…] requir[es] a board of appeals to identify the particular respect or respects in which the existing structure does not conform to the requirements of the present by-law and then determine whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones.” Norwell-Arch, LLC, 12 LCR at 209-10. If the board finds that there will be no such intensification or addition, the applicant is entitled to a special permit under the second exception clause of G. L. c. 40A, § 6, and any implementing bylaw. If the board finds that there will be intensification or addition of the nonconformity, the applicant will be required to show that the proposed change will not be “substantially more detrimental than the existing nonconforming structure or use to the neighborhood.” Fitzsimonds v. Bd. of Appeals of Chatham, 21 Mass. App. Ct. 53 , 56-57 (1985); Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. at 21; Norwell-Arch, LLC, 12 LCR at 210.

The Proposed Project in this case does not include plans to change the footprint of the house, thus maintaining the same coverage, frontage, and setback. The only change will be an increase in the height of the structure by seven (7) feet. This alteration to the nonconforming structure would not intensify the zoning violations or result in additional ones, and the Zoning Board reasonably found this to be the case.

Accordingly, I do not find that the Zoning Board acted arbitrarily, capriciously, or ruled based on untenable grounds or beyond the bounds of its authority but made sufficient findings in coming to its decision to issue the special permit.


For the foregoing reasons, the Court concludes that the plaintiffs lack standing to bring this action. Defendants have effectively challenged the presumption of standing granted to plaintiffs. After reviewing the issues without the benefit of the presumption, the Court finds and rules that plaintiffs have failed to show any injury individual to themselves and distinct from those general to the neighborhood. Furthermore, the Court is not convinced that the increased height of seven feet of the Proposed Project will significantly impair the view of the Atlantic Ocean from the Kenner Property. Accordingly, I find for defendants.

Judgment shall issue accordingly.

Charles W. Trombly, Jr.


Dated: January 7, 2009


[Note 1] The Hieb Property contains a total of thirteen thousand, two hundred and thirty-seven (13,237) square feet of property, most of which is non-buildable marshland.