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On Behalf of | Apr 26, 2013 | Land Use And Zoning |

Earlier this month, the Land Court (Long, J.) rendered a zoning decision denying defendants’ request for sanctions despite the fact that plaintiff had failed to meet the quantitative and qualitative showing for standing required to maintain his appeal of the special permit that was granted to the existing and prospective landowners. The case yields both encouraging and troublesome outcomes.

In Kushnirsky v. Bloomquist et al., 2013 WL 1461776, 12 MISC 464638(KCL) (Mass. Land Ct. Apr. 11, 2013), the city council granted a special permit to the defendants to operate an automobile repair shop. Plaintiff, an abutter, appealed the grant of the special permit and also included a claim for “spot zoning” relative to the zoning amendment that now allows automobile repair shops as a special permit use. Plaintiff was represented by legal counsel during the case.

Defendants sought to dismiss the case via summary judgment, and included a motion for attorney’s fees pursuant to M.G.L. c. 231, § 6F, which provides that

Upon motion of any party in any civil action in which a finding, verdict, decision, award, order or judgment has been made by a judge . . . the court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith. The court shall include in such finding the specific facts and reasons on which the finding is based.

If such a finding is made with respect to a party’s claims, the court shall award to each party against whom such claims were asserted an amount representing the reasonable counsel fees and other costs and expenses incurred in defending against such claims. . . .

No finding shall be made that any claim, defense, setoff or counterclaim was wholly insubstantial, frivolous and not advanced in good faith solely because a novel or unusual argument or principle of law was advanced in support thereof.

As a reminder, in zoning cases where the plaintiff’s standing is in question-and here, though the plaintiff had presumptive standing, the defendants offered a supported challenge-the plaintiff must

‘put forth credible evidence to substantiate his allegations.’ [citation omitted] ‘Credible evidence’ includes both quantitative and qualitative components. [citation omitted] Quantitatively, the plaintiff must produce specific facts in support of the injury he claims, and show that those injuries are to interests protected by the zoning ordinance. . . . Qualitatively, the plaintiff’s evidence for his claims must be of a kind on which a reasonable person could rely. . . . As a matter of law, ‘conjecture, personal opinion, and hypothesis’ are not of such kind. [citations omitted]

Id. at *3. The court notes exactly how plaintiff failed to meet this burden.

  • Plaintiff “did not oppose the summary judgment motion with any facts, nor even a memorandum of law. All he has placed in the record are his pleadings.” Indeed, the defendants’ filed version of the “undisputed material facts” were uncontested by and without response from plaintiff.
  • He “cites his personal concerns about increased traffic in the area as a harm that he will suffer from an operational repair garage on the property. Yet he offers no traffic study to support this contention, nor is he a traffic engineer.”
  • Plaintiff “admit[ted] that the area already has a high level of automobile traffic and gives no support for the claim that a special permit allowing the establishment of a repair garage on the property will exacerbate traffic to a level that is harmful to him.”
  • He claims that the noise and odors that a repair garage on the property will emit will cause him harm. But, again, he has failed to support those claims with any expert evidence (indeed, any admissible evidence at all), and has failed to show how these alleged noises and odors would be more harmful to him than the noises and odors that he already experiences from the gas station across the street from the property at issue and the other nearby commercial businesses.

The court rightfully and ultimately concludes that each of plaintiff’s alleged “harms is based on speculation and his own opinions, not on any factual support” and therefore does not have requisite standing to maintain the appeal.

Yet, despite all of these shortcomings, the plaintiff was ultimately not subject to sanctions pursuant to c. 231, § 6F. To this end, the court notes

Having reviewed the entirety of the record, I cannot say that [plaintiff’s] claims were “wholly insubstantial, frivolous and not advanced in good faith” when this case was filed. [He] is an abutter to an abutter, obviously concerned about the location of another business in the neighborhood, and brought this case with the advice and assistance of experienced counsel. To his credit, once the defendants came forward with their summary judgment motion, [plaintiff] did not attempt to fight it. Having reviewed that motion and its supporting evidence, he obviously (and correctly) concluded that he could not prevail and let the motion go forward unopposed. My ruling might have been otherwise had [plaintiff] put up obviously flawed counterarguments. But he did not, and I will not penalize him for taking the right course once he saw he would lose.

Kurchinsky at *4.

What is perhaps most troublesome about this case is that it continues to leave the door open for the myriad of zoning appeals that are based on purely speculative claims of increased traffic and noise, certainly two of the most common purported injuries resulting from zoning decisions. There are countless cases like this one where standing is ultimately defeated because there is no evidence (on the plaintiff’s part) to support the notion that any injuries will result from traffic and/or noise. To be fair, there are plenty of cases where these injuries are sufficiently substantiated to withstand a standing challenge (even if the plaintiffs do not ultimately prevail on substantive grounds). But by continuing to allow plaintiffs to attempt to thwart legitimate, lawful development from taking place by using lawsuits like these-and without financial penalty no less-land owners and business owners are ultimately the ones who suffer due to financial losses associated with significant litigation costs, project delays and increased labor and construction costs.

The fact that so many of these kinds of cases have already become solid frameworks for standing jurisprudence in the zoning context, begs the question of the role, if any, of Rule 11 sanctions in cases like these. There are more than enough examples available to counsel that indicate the level of quantitative and qualitative support that is necessary to go forward with the suit, much less file it. Yet flimsy cases continue to be filed.

As we wait for workable zoning reform to bear fruit, perhaps one fragment of hope is found in the court’s warning that had this plaintiff-and, by extension, future ones like him-gone forward with his case and made faulty arguments opposing the summary judgment motion, the court might not have been so amicable about sanctions under § 6F. It does seem to ring a warning bell for future litigants and their counsel, though it likely does not give much comfort to most permit holders at the outset of the permitting process given the relative difficulty in prevailing in these kinds of sanctions requests and the time and expense involved in bringing dispositive motions to terminate such unsupportable zoning appeals.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.


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