We have written a number of posts over the years discussing the requirements for standing in zoning appeals in Massachusetts, see here, here, here, here, here, and here to start. On September 30, 2019, the Appeals Court decided to add another twist to this already complicated body of law.
In Murchison v. Zoning Bd. Of Appeals of Sherborn, 96 Mass. App. Ct. 158 (2019), the plaintiffs appealed the issuance of a foundation permit issued to the defendants for their proposed construction of a single-family residence on a three-acre lot. The defendants’ property is located across the street from the plaintiffs’ home. The defendants’ proposed single-family residence, as well as the property on which it was to be built, allegedly violated the Sherborn zoning bylaw’s lot width requirement; “[t]he bylaws state that ‘minimum lot width’ is to be ‘[m]easured both at front setback line and at building line.'” Id. at 159. After trial, the Land Court, Scheier, J., dismissed the appeal, finding that the plaintiffs lacked standing to maintain the lawsuit.
Generally 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). The plaintiffs in Murchison fall in this last category. “A person aggrieved is one who suffers some infringement of his legal rights… the right or interest asserted by a plaintiff claiming aggrievement must be one that the Zoning Act is intended to protect, either explicitly or implicitly… [and though] [w]e do not define aggrievement narrowly, … we have stated that [a]ggrievement requires a showing of more than minimal or slightly appreciable harm.” 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700 (2012).
Moreover, the plaintiffs, being located across the street from the defendants’ proposed project, are entitled to a rebuttable presumption of aggrievement. See id. However, an adverse party can challenge an abutter’s presumption of standing by “showing that, as a matter of law, the claims of aggrievement raised by an abutter, … are not interests that the Zoning Act is intended to protect”, id. at 702 (citation omitted); and/or by offering evidence “warranting a finding contrary to the presumed fact.” Id., quoting Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255, 258 (2003).
The plaintiffs’ claim of aggrievement in Murchison emanated from the alleged violation of the lot width requirement, which they argued “protects their interest in preventing the overcrowding of their neighborhood and that this interest would be harmed by the proposed development”. Murchison, supra at 161. “Overcrowding” or more commonly referred to as “density” based aggrievement is cognizable under G. L. c. 40A. See, e.g., Dwyer v. Gallo, 73 Mass. App. Ct. 292, 297 (2008). The Appeals Court also assumed (without deciding) that the defendants offered sufficient evidence to rebut the plaintiffs’ presumption of standing at trial. See Murchison., supra at 161. The question, then, became whether the plaintiffs put forth sufficient credible evidence to substantiate their allegations of injury. See Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719, 721 (1996).
As noted by the Appeals Court, the trial judge “concluded there was no particularized harm because, she said, the alleged bylaw violations would not render the defendants’ lot unbuildable, but would merely affect the placement of the house.” Murchison, supra at 163. The trial judge’s reasoning appears to be that the same density concern would be realized – a single family house on the defendants’ property – even if the proposed house were moved to a different area on the lot to make it compliant with the bylaw. This reasoning, however, appears to be problematic, as the Supreme Judicial Court (“SJC”) has said that “the threat of harm to a potential plaintiff in relation to the threat of harm from a use permissible as of right is a factor that may be considered, [but] it is not dispositive of the standing issue.” Marashlian, supra at 724. Thus, if this truly were the only reason for the trial judge’s findings, then that would appear to be reversible error. However, the Appeals Court did not reverse the judge on this basis.
Instead, the Appeals Court appears to have created an entirely new (and terribly concerning) paradigm for what constitutes particularized/individualized harm sufficient to confer standing. It determined that the “harm to a property owner from having a house across the street closer to his or her own than is permitted … is different in kind from that suffered in an undifferentiated fashion by all the residents of the neighborhood. It is sufficiently particularized to support a claim of standing to challenge the alleged violation” Murchison, supra at 164. “If the plaintiffs’ interpretation of the bylaws is correct … then the proposed development would be closer to their house directly across the street than the bylaws’ provisions permit, and, given that particularized harm, they are entitled to enforce those provisions.” Murchison, supra at 164-165.
Whoa boy. What it appears that the Appeals Court has done, here, is rule that any claimed violation of a zoning bylaw’s dimensional requirements would per se result in a particularized injury to the nearest abutter so as to confer standing. In other words, if your neighbor received a special permit to construct a porch 6 inches into the side yard setback, then the mere fact of that authorized encroachment in and of itself would be sufficient for you to have standing. Such a rule has never before been articulated in this Commonwealth, and is troubling for a couple of reasons.
First, if taken to its logical conclusion, it effectively eliminates the factual inquiry concerning whether or not an allegation of harm flowing from a local zoning decision is sufficiently credible. Local zoning boards regularly grant waivers, special permits, and variances – all of which are authorized deviations from underlying, as-of-right zoning requirements. The Appeals Court’s reasoning would render automatic standing to abutters appealing from those types of zoning relief simply by claiming that such deviations are unlawful. That is a wild departure from the robust, longstanding, party-by-party inquiry into whether a plaintiff will be actually aggrieved – suffer actual injury. Every zoning appeal by an abutter (which is the vast majority of them) will have to be determined on the merits of the case, as a standing inquiry would be effectively resolved in the abutter’s favor, no matter how conjectural/speculative/hypothetical the alleged injury to the abutter may be.
Second, and somewhat relatedly, it appears to conflate the distinct inquiry for standing purposes (i.e., is the plaintiff a person aggrieved or harmed), and the inquiry on the underlying merits (i.e., did the zoning board exceed its authority). Even “[i]f the plaintiffs’ [are] correct”, Murchison, supra at 164-165, in their assertion that the project violated the Sherborn bylaw’s lot width requirements, then, under preexisting law and as a matter of fact, the validity of this merits claim would have no bearing on whether they are persons aggrieved or harmed by the local zoning decision, as required to have standing to seek judicial review of that decision. A zoning violation does not, in and of itself, create standing for abutters, just as the lack of a zoning violation would not vitiate an abutter’s potential standing.
It is going to be very interesting to see how this issue is either resolved on further appeal to the SJC, or otherwise is dealt with by the trial courts. In any event, it is continued evidence of the value of having knowledgeable counsel when treading in the waters of local zoning and litigation. The attorneys here at Phillips & Angley can assist you in these and other matters.
Written by Robert K. Hopkins, Esq.
Copyright (c) 2018 – 2019 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.