In the four months since the Supreme Judicial Court (SJC) decided Kenner v. Zoning Board of Appeals of Chatham – in which the SJC expressed its views on impaired views as a basis for standing in zoning cases (see related commentary here) – the Appeals Court has twice visited the issue. In Marhefka v. Zoning Board of Appeals of Sutton, the Appeals Court reversed a Land Court ruling that the loss of view of a pond did not create standing because views were not an interest protected by the zoning bylaw. In Schiffenhaus v. Kline, the Appeals Court affirmed a Land Court ruling that the defendant had not rebutted the presumption of “aggrievement” afforded to abutters, and went on to express a novel view on the “interests protected” prong of standing.
Both Marhefka and Schiffenhaus acknowledge the SJC’s decision in Kenner, where the SJC held that, under a bylaw requiring permitting authorities to consider the impact of scale, siting and mass on a neighborhood’s visual character, including views, a plaintiff must show both (1) a particularized harm to her property, and (2) a detrimental impact on the neighborhood’s visual character. However, while the import of Kenner is to constrain view-based standing, the recent Appeals Court decisions chart a more liberal course.
Marhefka cuts the wider swath. There, the Appeals Court held that an allegedly diminished pond view gave the plaintiffs standing to appeal a variance that would have allowed a two-car garage to be built on a lawfully nonconforming, undersized lot. To find that view was a protected interest, the court relied on the bylaw’s definition of “yard” as being “intended to provide aesthetic value as well as serve as a spatial and visual buffer between lots.” By this reasoning, almost any bylaw can be read to protect views, at least where incursions into required front, side or rear yards are at issue. All minimum yard requirements serve this same purpose, whether or not the bylaw expressly says so – this fact may be so obvious that a court could take judicial notice of it. According special treatment to bylaws that include terms like “visual buffer” in their definition of “yard” would arbitrarily elevate form over substance.
Schiffenhaus’s impact is also potentially expansive. There, the Appeals Court found that the zoning bylaw did not expressly identify view as a protected interest, but it did incorporate by reference the town’s local comprehensive plan, which states, “Long and broad vistas, sights of harmonious and distinctive architecture, and views of historic and culturally important sites are part of the heritage of Truro,” and therefore must be protected. In dicta, the court found that these incorporated references made views (or at least certain views) an interest protected by the bylaw. While it’s unknown how many zoning bylaws refer to a comprehensive or master plan, it’s reasonable to surmise that virtually all such plans at some point discuss views, open space, scenery, and the like.
While in Kenner the SJC seemed to be sending the message that impaired views will not, in most cases, provide a basis for standing to challenge a zoning decision, the Appeals Court, in Marhefka and Schiffenhaus, appears to have thrown open new doors to view-based standing. This apparent tension between the the two courts’ approaches may be resolved in some future case, but in the meantime, the status of impaired views as a basis for zoning standing remains as foggy as a Nantucket morning.