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:
In my last post, I addressed how, between 2006 and 2011, the Supreme Judicial Court had made it easier for developers to challenge abutters' legal standing to maintain zoning appeals. However, while the Commonwealth's high court was making life easier for developers, the Appeals Court was making it harder.
Massachusetts law has permitted neighbors to appeal zoning decisions for many decades. Like any civil action, abutter plaintiffs in zoning appeals must demonstrate that they have a substantive stake in the outcome-that they will be harmed if their neighbors' permits are allowed to stand. At Phillips & Angley, we have posted many blog entries on this topic of standing in abutter zoning appeals. The standing case law that has accumulated over the years has generally been intended to place a threshold hurdle in front of abutters' rights to appeal their neighbors' permitting. In particular, however, the pendulum of standing has swung back and forth, between making that hurdle higher and lower. Starting in 2012, we left an era in which standing was more difficult to prove to a period where many of the basic limitations on standing have been effectively removed. The following is the first in a series of two posts that look at this-nearly incoherent-progression. This post focuses on how good developers had it at the beginning of 2012.
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.
We wanted to share a link to a very recent Suffolk University Law Review article discussing the issue of standing: Beth Lidington, Massachusetts Standing Laws and Zoning Appeals: Standing on Shaky Ground After Kenner v. Zoning Board of Appeals, 46 Suffolk U. L. Rev. 603 (2013). Like most law review articles, this one contains a good synopsis of the law with many useful footnotes and citations throughout. The arc of this particular article is view-based harm as a premise for standing, all in the wake of the SJC's Kenner decision rendered in 2011. The author's analysis is thoughtful and worth the read.