In an “unpublished” decision in Lortie v. Zoning Board of Appeals of Westport, an Appeals Court panel last month reversed a Superior Court decision that had dismissed, on summary judgment, the plaintiff abutters’ appeal of an amendment to a previously-issued variance.  The original variance allowed the defendant developer to demolish 11 apartments and replace them with 11 condominium units.  The plaintiffs didn’t appeal the variance because it included two conditions the plaintiffs had sought:  one imposing a setback requirement of 40 feet, and the other prohibiting full basements under the new units.  As built, one of the condominium units was 28 feet from the plaintiffs’ property.  The developer sought to amend the variance by eliminating the setback and basement-related conditions, and the defendant zoning board approved those amendments.  The plaintiffs appealed, and the Superior Court granted the defendants’ motion for summary judgment, finding that the plaintiffs lacked standing to challenge the amended variance because they hadn’t appealed the original one.

The Appeals Court panel reversed and remanded the case to the Superior Court for consideration on the merits.  The panel rejected the Superior Court’s reasoning that, because the plaintiffs hadn’t appealed the original variance, the scope of the court’s review was limited to the amendments themselves.  The panel observed, “[t]he plaintiffs were warranted in relying on the conditions imposed by the original variance in not seeking an appeal.”  Quoting a Rhode Island case, the panel continued, “If . . . not, then they were grossly misled into giving up a right to object to the granting of the [defendants’] application . . . .”  As to the original variance, the panel stated “it is undeniable” that the plaintiffs had standing to appeal, since the variance violated zoning requirements relating to density and use.