Use variance upheld for lack of standing

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The Supreme Judicial Court has found that abutters failed to establish standing to challenge a use variance for a warehouse within the town of Northborough’s groundwater protection overlay district.

The property on which Cable Matters Inc. proposed to construct and operate the warehouse is located in the industrial zoning district of Northborough, in which the proposed building and use are permitted.

However, the property is also within Area 1 of the town’s groundwater protection overlay district. Because the groundwater overlay district does not permit warehouses, Cable Matters was required to obtain a use variance, which the town’s zoning board granted.

The plaintiffs, who live across the street from the proposed warehouse, appealed from the board’s decision to the Superior Court pursuant to G.L.c. 40A, §17. Acting on Cable Matters’ motion for summary judgment, a Superior Court judge concluded that the plaintiffs lacked standing because they failed to show that they were aggrieved by the decision of the zoning board to allow the proposed warehouse.

The plaintiffs appealed from that ruling to the Appeals Court, where, in an unpublished decision, a panel vacated the judgment on the ground that, in assessing the plaintiffs’ standing, the judge should have considered not only Cable Matters’ proposed use of the warehouse, but also “the uses to which an ordinary 20,000 square foot warehouse” might be put in the future.

“Where, as here, there was no information to suggest that the warehouse would be used other than as represented by Cable Matters, or in a materially different way than as approved by the zoning board and by the town’s planning board (planning board), we conclude that the judge properly considered the issue of the plaintiffs’ standing solely in view of Cable Matters’s proposed use. Further, we discern no error in the judge’s conclusion that the plaintiffs failed to present a triable issue of fact that they will be aggrieved by the proposed warehouse. We accordingly affirm the Superior Court judge’s order dismissing the plaintiffs’ complaint for lack of standing,” Justice Gabrielle R. Wolohojian wrote for the SJC.

The 26-page decision is Stone v. Zoning Board of Appeals of Northborough, Lawyers Weekly No. 10-093-25.