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Challenging Zoning Bylaws: Standing: Another Jurisdictional Consideration

This is the fourth in a series of posts on challenges to zoning bylaws and ordinances. Before reaching the merits of zoning challenges, one more jurisdictional issue should be considered: standing-also referred to in the case law as "harm", "injury" or "aggrievement". "'The question of standing is one of critical significance. "From an early day it has been an established principle in this Commonwealth that only persons who have themselves suffered, or who are in danger of suffering, legal harm can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of government.'"' Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1988), quoting Tax Equity Alliance v. Commissioner of Revenue, 423 Mass. 708, 715 (1996), ultimately quoting Doe v. The Governor, 381 Mass. 702, 705 (1980).

Massachusetts law "treat[s] standing as an issue of subject matter jurisdiction." Ginther, supra. Thus, without the requisite demonstration of harm by a plaintiff, a court lacks jurisdiction to reach the merits of a claim. Marrotta v. Board of Appeals of Revere, 336 Mass. 199, 202-203 (1957). Federal courts view standing through, in essence, the same prism. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (articulating three criteria for standing under Article III of the U.S. Constitution: (1) the showing of a concrete, particularized, imminent and non-speculative injury; (2) which injury was caused by the complained-of government action, and (3) which has the ability to be redressed by the lawsuit). Thus, claims arising under the laws of the United States also require a demonstration of a plaintiff's standing.

However, standing can be a strange thing in cases seeking to challenge zoning bylaws and ordinances. Traditionally, there is a close relationship between the standing, and case and controversy requirements, for subject matter jurisdiction. See Lujan, supra, at 560 ("[t]hough some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III"). However, because of the statute's dispensation of plaintiffs from the latter requirement, "[s]tanding is something of a misnomer in evaluating the right to bring a c. 240, § 14A, petition." Hansen & Donahue, Inc. v. Town of Norwood, 61 Mass. App. Ct. 292, 295 n. 8 (2004).

As discussed in the second post in this series, a plaintiff in a G. L. c. 240, § 14A case need not demonstrate a live controversy: "The primary purpose of proceedings under § 14A is to determine how and with what rights and limitations the land of the person seeking an adjudication may be used under the provisions of a zoning enactment in terms applicable to it, particularly where there is no controversy and hence no basis for other declaratory relief." Harrison v. Braintree, 355 Mass. 651, 654 (1969) (emphasis added). Thus, a § 14A plaintiff need not prove the likelihood of a direct, non-speculative harm based on a zoning amendment. He or she only needs to show that the zoning law "directly and adversely affects the permitted use of his [or her] land." Mastriani v. Building Inspector of Monson, 19 Mass. App. Ct. 989, 990 (1985).

This standing-like requirement under G. L. c. 240, § 14A, does not mean that the statute merely provides a cause of action for owners whose properties are the subject of the challenged zoning laws. It also allows abutting property owners to challenge zoning laws and amendments affecting neighboring properties. See Harrison, supra at 654-655; Hansen & Donahue, supra, at 295; Hanna v. Framingham, 60 Mass. App. Ct. 420, 422-424 (2004); Fitch v. Board of Appeals of Concord, 55 Mass. App. Ct. 748, 753-754 (2002); Mastriani, supra.

Moreover, "[u]nlike an appeal from an administrative zoning decision under G.L. c. 40A, § 17, a plaintiff challenging the validity of a zoning enactment under G.L. c. 240, § 14A, need not demonstrate that he will suffer an injury that is special and different from that experienced by the general community." Hanna, supra, at 423. This loosening of the individualization requirement for standing also applies to actions in Superior Court under G. L. c. 231A, Van Renselaar v. City of Springfield, 58 Mass. App. Ct. 104, 107 (2003); which otherwise do require a live controversy to maintain them. See Massachusetts Ass'n of Independent Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977) ("[i]n order for a court to entertain a petition for declaratory relief, an 'actual controversy' sufficient to withstand a motion to dismiss must appear on the pleadings").

One might ask, based upon this seemingly-categorical loosening of standing requirements pursuant to G. L. c. 240, § 14A under the case law, whether the "direct effect" standard has any meaning at all, and creates any limitation on the class of parties who may bring petitions under the statute. Nevertheless, the Appeals Court has held that the statute does not countenance "preemptive attacks by abutters against theoretical uses." Hansen & Donahue, supra, at 296. Thus, for abutters, the statute requires, at a minimum, that the "challenged use" be "in operation" at the time the "§ 14A action" was "brought", and that such use be physically possible, even if it were discontinued, during the course of the litigation. Id.

While the Hansen & Donahue decision may, thus, allude to the noetic space in which the "direct effect" standard has some teeth, as a practical matter, and on the question of standing, it is reasonably clear that plaintiffs seeking to challenge zoning bylaws should file under G. L. c. 240, § 14A, in the Land Court, rather than in Superior Court under G. L. c. 231A. Nonetheless, there is an interesting question left unanswered in this whole discussion: Must a plaintiff bringing a substantive challenge to a zoning bylaw, under the U.S. Constitution, brought pursuant to G. L. c. 240, § 14A in the Land Court, meet the standard for Article III standing, as articulated in Lujan, supra, under the Supremacy Clause, regardless of what the Massachusetts Judiciary has held with respect to § 14A? It is questions like these, as well as the intricacy and complexity of the possible answers, which make the selection of experienced and knowledgeable counsel imperative. 

Written by Nicholas P. Shapiro, Esq. on behalf of Jeffrey T. Angley, P.C

Copyright (c) 2011-2017 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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