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Diarmuid O'CONNELL & another vs. Jerome A. VAINISI & others.
Diarmuid O'CONNELL & another [FN1] vs. Jerome A. VAINISI & others. [FN2] No. 11-P-1906. Norfolk. September 7, 2012. - October 22, 2012. Zoning, Person aggrieved. CIVIL ACTION commenced in the Superior Court Department on July 2, 2009. The case was heard by John P. Connor, Jr., J., on motions for summary judgment. Peter L. Eleey for the plaintiffs. Adam J. Brodsky for Jerome A. Vainisi & another. Kimberly M. Saillant for zoning board of appeals of Cohasset. Present: Green, Fecteau, & Milkey, JJ. MILKEY, J. In this zoning case, the plaintiffs challenge the right of their neighbors to construct a certain structure along the boundary between their properties. The zoning board of appeals of Cohasset (board) restricted the size and use of the structure, but otherwise allowed it to remain. On cross motions for summary judgment, a judge of the Superior Court dismissed the plaintiffs' appeal of the board's ruling for lack of standing. We reverse and remand. Background. Defendants Jerome A. and Tracy Vainisi (together, the Vainisis) own property in the town of Cohasset (town). Like most other lots in the area, the Vainisis' lot is undersized, but the house there enjoys status as a preexisting nonconforming structure. The western side yard of the Vainisis' lot previously sloped down toward the lot of their abutting neighbors, plaintiffs Diarmuid and Elizabeth O'Connell (together, the O'Connells). As part of a renovation project, the Vainisis constructed a stone retaining wall along the border of the two lots. [FN3] The wall was apparently over six feet in height, although its exact height is not established in the record. The Vainisis then filled in the area between the retaining wall and their house and placed cobblestones on top of the fill. This created a level cobblestone patio next to their home that could be used for parking and other activities. The Vainisis also built a wooden fence on top of the retaining wall. The parties agree that a fifteen-foot side yard setback requirement applies to the Vainisis' property, and it is undisputed that the retaining wall, fence, and cobblestone patio lie in the setback area. Under

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