It's always interesting to read zoning appeal cases that focus on the question of standing, and which, if any, of the plaintiff's alleged harms or injuries will convince the judge that the substantive portion of the case can move ahead.
A recent Land Court case, Pellulo v. Landgren, No. 13 MISC. 478907KCL (Mass. Land Ct. Dec. 3, 2014), is a good example of the kinds of injuries that a typical plaintiff might allege, the evidence that is offered to support or refute those allegations, and how a judge might view each of these when deciding whether the requisite standing exists. In this case, the judge had already decided on summary judgment that the variance issued in the case was invalid; the only issue for trial was whether plaintiff had the standing necessary to bring the case.
In Pellulo, the plaintiff was an abutter to the subject property and thus had the benefit of the presumption of standing at the outset of the case. As a reminder, this is how standing works in such cases (as quoted from Pellulo):
· To assert a plausible claim of injury to such an interest, a "plaintiff must put forth credible evidence to substantiate his allegations." Marashlian, 421 Mass. at 721.
· "Credible evidence" has
both a quantitative and a qualitative component....Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action. Conjecture, personal opinion, and hypothesis are therefore insufficient. [citation omitted]
· Abutters [like plaintiff in this case] have a rebuttable presumption of aggrievement. [citation omitted] That presumption can be rebutted in two ways. First, a defendant may show that the rights allegedly aggrieved are not interests protected by G.L. c. 40A or the local zoning ordinance. This rebuts standing because "[a]n abutter can have no reasonable expectation of proving a legally cognizable injury where the Zoning Act and related zoning ordinances or bylaws do not offer protection from the alleged harm in the first instance." [citation omitted] Second, where a plaintiff has alleged harm to an interest protected by G.L. c. 40A, the defendant can rebut the presumption by producing credible evidence to refute the presumed fact of aggrievement. This can be done by presenting evidence showing the aggrievement is either unfounded or de minimus. [citation omitted]
· Once rebutted, the plaintiff must prove his standing by "establish[ing]-by direct facts and not by speculative personal opinion-that his injury is special and different from the concerns of the rest of the community." [citation omitted] Moreover, the injury must be "more than minimal or slightly appreciable harm."
In this case, the court found that defendants had "facially rebutted the presumption of standing, [and therefore] the burden remained on [plaintiff] to prove standing through credible evidence, leaving the question of standing to be decided on all the evidence with no benefit to the plaintiffs from the presumption." [citation omitted]
Here are the primary injuries alleged by the plaintiff in Pellulo:
- NOISE & TRAFFIC from garbage, recycling, and oil delivery trucks to subject property
- NOISE from defendants' lawn service
- NOISE, HEADLIGHTS & BLOCKED TRAFFIC from defendants' occasional guests
- TRAFFIC ON ADJACENT WAY (which was allegedly greater once road was improved from unpaved condition)
- HEADLIGHTS SHINING INTO PLAINTIFF'S HOUSE (bedroom/bathrooms on one side of house) during evening hours, daily by defendants, and occasionally by defendants' guests
The judge in this case took two views of the plaintiff's and defendants' properties to get a sense of the layout, listened to testimony, and admitted exhibit evidence during trial. Despite the multiple claims of injury alleged by plaintiff, the judge found only one to be credible and significant enough to create "a specific harm that only arises from the [defendants'] property" and which "interferes with the use and enjoyment of the [plaintiff's] home (an implicitly protected interest under the local zoning bylaw): the bright headlights shining into the bedroom and bathroom of plaintiff's home. This alleged injury was sufficient to meet the standing threshold, and the variance was thus invalidated. (For practitioners, the case is worth reading to see why the judge rejected the other claims of injury.)
Once again, cases like Pellulo remind us that standing does not necessarily have to be a high bar to clear, but judges will certainly carefully consider each claim using the evidence submitted in support of (and to refute) those claims.
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) 2011-2015 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.