Abutter must show particularized harm to have standing to appeal

This article, written by attorney Damon Seligson, was originally published by New England Biz Law Update and can be found here.

When it comes to the concept of legal standing, Massachusetts zoning law can be an unpredictable landscape to navigate. However, in Murchison v. Zoning Board of Appeals of Sherborn, 485 Mass. 209 (2020), a relatively recent opinion, the Supreme Judicial Court clarified what is required for a party to establish standing to pursue a judicial appeal from a zoning decision. On March 6, 2020, a mere day after hearing oral argument, the SJC ruled that abutting landowners have standing to challenge a zoning board decision only if they can establish that they will suffer a particularized injury because of the board’s decision.

In Murchison, the defendant developer applied for a foundation permit in connection with his intention to erect a single-family home on a three-acre vacant lot in Sherborn. A local zoning officer within Sherborn’s building department found that the developer’s proposal complied with all applicable zoning bylaws and issued the requested permit.

The plaintiffs, a husband and wife who lived more than 60 yards away from the vacant lot, appealed the decision of the zoning officer to the Sherborn Zoning Board of Appeals. The plaintiffs argued that the developer’s proposal failed to comply with the town’s minimum-lot-width bylaw. In other words, according to the plaintiffs, the lot was too narrow to be a buildable lot. Sherborn’s ZBA disagreed with the plaintiffs and affirmed the issuance of the developer’s foundation permit. The plaintiffs appealed the ZBA’s ruling to Land Court under G.L. c. 40A, § 17 of the Zoning Act.

As a general matter, G.L. c. 40A, § 17 permits any person who is “aggrieved” by a zoning decision to pursue a de novo appeal in state court. Appeals under § 17 are typically filed in Superior Court or Land Court, but the Housing Court and District Court also have subject matter jurisdiction to hear such appeals. Under G.L. c. 40A, § 11, only a “party aggrieved” from a zoning decision may pursue an appeal. Additionally, under § 10 of the statute, there is a presumption of standing for any abutters located within three hundred feet of the property line of the petitioner seeking the zoning relief. This presumption of aggrievement, however, is rebuttable. The defendant – typically the initial petitioner of the zoning relief at issue – can rebut the presumption by (i) showing that the alleged harm is not a protected interest under the zoning ordinance, or (2) presenting credible affirmative evidence to refute the presumption.

If standing is rebutted, the plaintiff pursuing the zoning appeal bears the burden of showing aggrievement, with the party who received the zoning relief bearing the burden of showing that is entitled to such approval. Although there is an abundance of case law including plaintiffs alleging how they will be harmed by a zoning decision, G.L. c. 40A, § 17 is largely silent as to what specific harms may constitute “aggrievement” in any particular case. This uncertainty endures because under the applicable caselaw the standard is to be a flexible one, and the term is not meant to be narrowly construed.

Because the Murchison plaintiffs were abutters to their neighbor’s property, under the Zoning Act, they enjoyed the rebuttable presumption of standing. After a trial, the Land Court ruled that the defendants had rebutted this presumption, largely through expert testimony, and determined that the plaintiffs were not aggrieved by the ZBA’s decision. The plaintiffs had argued that the zoning decision would pave the way for a new home that would create overcrowding and increased density, and that these are interests protected by the local zoning bylaw. The plaintiffs also argued there would be an increase in lighting, traffic, and noise, which are additional protected interests. The Land Court disagreed, ruling that the plaintiffs offered no credible evidence of such harms, and the harms, even if shown by credible evidence, would not be particular to the plaintiffs but would impact the neighborhood generally. The Land Court also found that any increase in noise, lighting, traffic, and storm water runoff in the neighborhood would cause the plaintiffs only de minimis injury given that their property was 60 yards from the vacant lot. Consequently, the Land Court dismissed the plaintiffs’ complaint for lack of standing without reaching the merits of the plaintiffs’ claims. The plaintiffs appealed.

The Appeals Court reversed the Land Court judge finding that the minimum lot width requirement was a zoning ordinance that Sherborn had enacted to prevent overcrowding, and an increase in neighborhood density constituted an injury per se to abutters. Accordingly, the Appeals Court concluded that the developer’s violation of the bylaw was sufficient, and that any increase in density was, on its own, enough to prove aggrievement without more. Thus, the Appeals Court held that the violation of the minimum lot width requirement, alone, served to confer standing on the plaintiffs. In response, the developer appealed.

One day after the hearing, the SJC reversed the Appeals Court. In upholding the Land Court’s decision that the plaintiffs lacked standing for a zoning appeal, the SJC reaffirmed a central tenet for determining one’s standing for a G.L. c. 40A, § 17, appeal: “establishing standing requires a plaintiff to do more than merely allege a zoning violation.” As the SJC noted, the Murchison plaintiffs needed to demonstrate that they themselves would be impacted by the zoning relief, such as a showing that the development interfered with a view, reduced light or air, or interfered with their privacy. While the Appeals Court was willing to determine standing mostly based upon a local municipality’s zoning ordinance alone, the Supreme Judicial Court clarified that a failure to comply with zoning, on its own, does not establish aggrievement.

While Murchison did not chart a new path for determining standing in a judicial appeal filed under G.L. c. 40A, § 17, it did reaffirm the longstanding requirement that to show “aggrievement”, a plaintiff seeking to annul a zoning board decision must show an individualized harm. The Appeals Court had offered a simpler solution, to wit: Let each municipality’s zoning ordinance decide. That simplistic solution, however, would comport standing to nearly any party alleging a zoning violation and would seemingly eliminate the requirement of “aggrievement” as is set forth in § 17. After Murchinson, a violation of a zoning bylaw or ordinance, even if proven, does not confer standing on abutters unless they can prove a particularized injury, i.e., an injury apart from the violation’s impact on the community at large. According to the SJC’s ruling, mere impact is not the same as injury. In other words, it does not matter that constructing a house will impact the plaintiffs’ view of a vacant lot. Rather, the plaintiffs were required to show that the construction on the lot would cause them injury in fact, i.e., a non-speculative injury serious enough that the law provides a remedy. Where the plaintiffs’ property was a full 60 yards from the vacant lot, the plaintiffs were unable to make such a showing.

The impact of Murchinson for those pursuing zoning appeals is to be mindful that a determination of standing is a question of fact, and careful thought must be given to the evidence necessary to prove such a matter. Alternatively, for defendants faced with a judicial challenge to a zoning board decision, rebutting a plaintiff’s asserted standing under § 17 can end the legal pursuit by demonstrating (i) that the harm the plaintiff anticipates from the defendant’s development is not among the “interests that the Zoning Act is intended to protect”; (ii) that an anticipated harm is not sufficiently particular to the plaintiff; (iii) that while the Zoning Act might protect the plaintiff’s interests, the defendant’s development complies fully with those zoning requirements that pertain to those interests; and (iv) that, as a matter of fact, the anticipated harms won’t occur.