A few years ago, I posted a two-part review of the state of the law for standing under the Zoning Act. Standing refers to a claimant's legal right to bring a claim. Not every person has the right to bring every claim. As previously discussed, this principle is especially true and significant in zoning appeals brought by neighbors, abutting property owners, rather than by applicant property owners. While the decisional law has not substantially changed since my post from 2015, our office recently encountered a case that involved some interesting questions about standing under G. L. c. 40A:
· Does "Person Aggrieved" Status Require a Relationship with Real Property?
· Can a Statement of Corporate Purpose Act as the "Private Right" that Must Be Infringed to Demonstrate Standing?
· What Type of "Any Municipal Officer or Board" Can Bring an Appeal for Judicial Review under the Zoning Act?
All of these questions have largely been answered by Massachusetts courts, but these issues do not come up with the same frequency as those addressed in my prior blog posts. Nevertheless, given the maturity of this area of the law, even as to rather esoteric questions, or questions involving such fundamental matters that they do not get challenged often, our office was recently able to prevail on a motion to dismiss for lack of subject matter jurisdiction.
Types of People Who Have Standing
Broadly-speaking, three types of persons have standing under G. L. c. 40A, § 17: (1) applicants who have been denied zoning relief, see Wendy's Old Fashioned Hamburgers of NY, Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 384-385 (2009); (2) "municipal officer[s] or board[s]" having "duties to perform in relation to . . . zoning," Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 701 (1998) and cases cited; and (3) "persons aggrieved"-those who, in their capacity as property owners, have suffered individualized and cognizable injuries by the grant of zoning relief to others. See Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 492 (1989) ("Harvard Sq"). In our recent case, the plaintiff, who appealed our client's special permits, was a public, quasi-municipal economic development corporation. It was our opinion that this entity could not qualify as fitting into any of the foregoing categories. The first category, of course, was facially irrelevant because our client had received all of the zoning relief that it had sought. The question arose as to whether the plaintiff could fit into either of the other categories for standing under the c. 40A.
"Person Aggrieved" Status Requires a Relationship with Real Property.
From reading the complaint, we immediately decided to attack the plaintiff's standing because it was not an abutter or an abutter to an abutter within 300 feet, as required to be a statutory "party in interest" having a rebuttable presumption of standing; it alleged in purely conclusory fashion that it was a "person aggrieved"; and the closest property it owned was about a third of a mile away from locus. Inherently, it is difficult to believe that somebody will suffer harm to his or her property, when the property is situated such a great distance away from a project. Accordingly, through an expert affidavit from an engineer, we provided the Court with evidence, extrinsic to the complaint and answer, substantiating the position that the plaintiff as the proprietor of land would not be harmed.
In opposition to our motion to dismiss, the plaintiff admitted that its standing to maintain the lawsuit did not derive from its ownership or control of real property. Without citation to authority, the plaintiff boldly asserted that "standing is not dependent upon ownership or occupancy of real property near the project locus." Our review of the case law indicated that this assertion could not be further from the legal truth.
"Not every person whose interests might conceivably be adversely affected is entitled to [judicial] review." Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998). "Rather, 'only a limited class of individuals-those whose property interest will be affected-is given standing to challenge the board's exercise of its discretion.'" Minute Man Nat'l Park Assoc., Inc. v. Freedman, 20 LCR 402, 404 (Aug. 3, 2012) (12 MISC 458748) (Foster, J.) ("Minute Man"), quoting Harvard Sq., supra, ultimately quoting Green v. Board of Appeals of Provincetown, 26 Mass. App. Ct. 469, 479 (1988) (emphasis added). While, in most cases, an abutter plaintiff's having a sufficient property interest to maintain the zoning appeal is not an issue, there has been some appellate law on the point. Under that case law, it is unclear whether even a leasehold alone is sufficient to confer standing under G. L. c. 40A, § 17. Compare Quimby v. Zoning Bd. of Appeals of Arlington, 19 Mass. App. Ct. 1005, 1006 (1985) ("[t]here is no per se rule that a tenant or long-time resident can never have standing"); with Reeves v. Board of Zoning Appeal of Cambridge, 16 Mass. App. Ct. 1011, 1012 (1983) (tenant "alleged no interest entitled to protection under the zoning ordinance") (emphasis in original). However, what is clear is that the "person aggrieved" must have "some legal right to possess or control the affected real property". Minute Man, supra.
The Supreme Judicial Court has specifically held that, for "bodies politic and corporate," like the plaintiff, which was created by a special act of the Legislature, to be "persons aggrieved" for standing purposes, they must "actually own land". Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81, 92 (2007). In Jepson, the court was tasked with determining "whether a municipal housing authority that owned land abutting the project, may be a 'person' for purposes of standing under G.L. c. 40B, § 21." Id. In answering the question, the court noted that local housing authorities are bodies politic and corporate, and are analogous to municipal corporations that lack standing, because "[m]unicipal boards and officers are not 'person[s]' for purposes of standing." Id. at 92-93, citing Commonwealth v. Dowd, 37 Mass. App. Ct. 164, 166, (1994) (in the term "person aggrieved," "the word 'person' ordinarily does not describe the State or its subdivisions"). See Planning Bd. of Hingham v. Hingham Campus, LLC, 438 Mass. 364, 368 (2003). However, "[t]hese cases d[id] not involve a situation where the municipal body actually owns land . . . abutting the proposed development. Based on this status, the housing authority qualifie[d] as a 'person' for standing purposes." Id. at 92-93.
Like the housing authority in Jepson, the plaintiff's potential status as a "person aggrieved" under G. L. c. 40A, § 17, legally depends on ownership or control of real property. In its opposition, however, the plaintiff affirmatively and explicitly disclaimed any aggrievement in its capacity as a proprietor of real estate. By its own admission, then, the plaintiffs was not a "person aggrieved". However, on our motion to dismiss, the Superior Court did not even need to reach this dispositive issue, because there were other determinative defects in the plaintiff's claim for standing. Those issues will be address in the next blog post. Stay tuned.
Written by Nicholas P. Shapiro, Esq. on behalf of Jeffrey T. Angley, P.C
Copyright (c) 2011-2018 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for informational 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.