Paul McMorrow

A view for one comes at a risk to all

By Paul McMorrow
December 17, 2010

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IN MASSACHUSETTS, NIMBY-ism is a religion, and disgruntled residents sometimes appear to be hunting development projects for sport. It’s rare for an office building or a retail center or even a single family home to secure permits without arousing some degree of ire in some portion of the local populace. Some percentage of those developments wind up in court, fending off opponents’ legal challenges. That’s where the real bloodletting begins.

Development opponents don’t have to be rich or even right to kill a project; they just have to be determined enough to tie up permits in the court system, where cases can easily take two to five years to be decided, and the mere threat of a legal setback, however small, is a powerful thing. At the very least, litigation costs money and time, since no bank is willing to lend money to a construction job that might get its permits yanked at any moment.

This uncertainty can be enough to seriously maim or kill big-ticket commercial developments. And it can be hellish for homeowners embroiled in drawn-out legal feuds with their neighbors.

Now the future of NIMBY-ism in the Commonwealth may hinge not on a traffic-belching monster of a mega-development, but on the views from a Chatham porch.

In 2006, the Chatham zoning board gave a couple permission to raze their small oceanfront cottage. The couple planned to retire to the cottage, which they’d previously used as a rental, and to make the place liveable, they wanted to raise it up over the floodplain. The new home would be built on the same footprint as the old one. The only difference was that it would be seven feet taller.

According to the folks across the street, that was seven feet too tall. They sued, protesting the potential loss of the view of the Atlantic Ocean from their porch, among other things.

It took two and a half years, but a Land Court judge tossed out the case, saying that the loss of views amounted to an “insignificant’’ issue. An appeals court reversed that decision, and last week, the Supreme Judicial Court heard arguments on the matter. The SJC should issue a ruling in the spring.

The stakes in the Chatham case appear relatively small — seven feet of building height versus the view of a portion of the ocean from a porch across the street. But this four-year spat is a good example of why Massachusetts can be a nightmare for anyone looking to put a shovel into the ground. The neighbors across the street own a home. They’ve gotten used to looking out over their neighbors’ homes, toward the water. That water has the potential to rise up and devastate the homes built along it. Even so, they’ve decided to assert a private ownership interest in the views above those homes; they’ve also decided to test the legal theory that their rights to their porch vistas trump both the property rights of their neighbors and the authority of their town zoning board.

The SJC is weighing a number of legal arguments in the case, but no disagreement has the potential to wreak wider havoc than the issue of views.

There are few construction projects anywhere that knock down square footage. Whether it’s a university dormitory in Boston, a laboratory complex in Cambridge, or a Cape Cod cottage seeking refuge above the floodplain, construction projects generally work by adding some volume of square footage to the built environment. They necessarily alter the surrounding landscape. Those alterations can be compiled into laundry lists of complaints, given enough time and angst.

Many of the typical objections — traffic, shadow, wind — can be measured and mitigated. Views are different. They’re subjective and difficult to quantify. Some towns’ zoning codes explicitly reference individual property owners’ views, but others, like Chatham’s, don’t. And since virtually every development project necessarily blocks somebody’s view of something, they could be a powerful tool for stalling construction with litigation.

Courts have generally been working off the theory that project opponents can’t sue developers just because they’re impacted by a development; they have to be genuinely harmed by a permitting decision. But if all it takes to show harm is the loss of an ocean view from across the road and over a roof, builders of all sizes could find themselves sunk.

Paul McMorrow is an associate editor at CommonWealth magazine. His column appears regularly in the Globe.