Plaintiffs, appealing under G. L. c. 40A, §17, seek to annul a decision dated March 4, 1992 (the Decision) of the Zoning Board of Appeals (the Board) of the Town of Andover (the Town) granting to Defendant Vicor Corporation (Vicor) a variance under the Zoning By-Laws (the By-Law) of the Town with respect to property, Lots 30A and 30B on Assessor's Map 179 (Locus) owned by Vicor in the Town. The variance is to allow the construction of a building for business, professional, office, research and manufacturing purposes; granted with it was a Special Permit for parking.
The Complaint has five counts:
I. The Decision is invalid substantively.
II. The Decision violates G. L. c. 40A, §16, because it is essentially the same as a defeated Town Meeting vote.
III. The Board exceeded its authority in granting the variance.
IV. The Decision violated G. L. c. 40A, §5, as it is a circumvention of the procedures for amending zoning by-laws.
V. The Decision violates G. L. c. 40A, §10, in that the Board has effectively reversed a Town Meeting vote without meeting the requirements for doing that.
Vicor moved for summary judgment as to all counts, on the basis of standing. It also moved as to Counts II, IV and V separately. The Board moved for summary judgment against Counts II and V.
Counsel for Plaintiffs, Vicor and the Board argued the motions July 13, 1992 and submitted memoranda in support. Plaintiffs submitted an Affidavit of William Sloboda in opposition to the motions. Vicor submitted Affidavits of John F. Gallant (Vicor's counsel) and Alexander Gamon, a professional engineer, in support of the motions. At the hearing counsel for Plaintiffs stipulated that Plaintiffs are not "parties in interest" as defined in G. L. c. 40A, §11.
I find and rule for Defendants as follows:
1. I have attached a copy of Assessor's Map 179 for the Town and have indicated thereon Locus and Plaintiffs' residence, as designated to me by counsel.
2. Plaintiffs' property is at least 300' from the property line of Locus, does not abut Locus and is not directly opposite on any street or way from Locus.
3. The Assessor's certification as to this matter, attached as Exhibit C to the Gallant Affidavit, does not list Plaintiffs as "parties in interest".
4. Plaintiffs have not presented any evidence indicating they have standing in this action. Their counsel asserted (without Affidavit support) that Plaintiffs are the nearest residential neighbor, but even assuming that is so, it does not confer standing.
5. Plaintiffs are not "persons aggrieved" under G. L. c. 40A, §17 and accordingly their Complaint is dismissed.