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The Abutters Strike Back: Specially-Protected Interests and Density-Related Aggrievement

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.

In Dwyer v. Gallo, 73 Mass. App. Ct. 292 (2008), the court "recognized an abutter's legal interest in preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow." Id., at 296. The then court recited the facts, apparent on the trial record, that the neighborhood was densely developed, that the development was in "close proximity . . . to [the abutter's] rear deck and sunroom", and that her privacy and view had been diminished by "the removal of trees in anticipation of construction". Id. Based on this evidence, the Dwyer court held that, "[f]or the above reasons, crowding of an abutter's residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved and thereby confer standing to maintain a zoning appeal." Id., at 297.

In 2009 and 2011, The Appeals Court explicitly relied upon Dwyer to reverse two more trial judges' determinations of no standing. See Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 519 (2011); Sheppard v. Zoning Bd. of Appeals of Boston, 74 Mass. App. Ct. 8, 12 (2009), quoting Dwyer, supra. The effect of this line of cases has been to infect density-based claims of harm with a talismanic quality, such that when "density" is invoked an abutter invariably and almost per se has standing. See also Mauri v. Zoning Bd. of Appeals of Newton, 83 Mass. App. Ct. 336, 340 (2013), quoting Dwyer, supra (even where new structure meets setback requirement, its violation of other density regulation confers standing). Trial judges have taken note of this line of cases.

Marhefka, supra, in particular, is noteworthy for additional reasons. In it, the Appeals Court held that "[t]he view injury the plaintiffs have alleged relates to protected density and dimensional interests." Id., at 520. Thus, while a "plaintiff[']s claim of an impairment of water view, without more, does not confer standing," "where . . . a neighbor asserts diminished water view as a result of further violation of by-law density and dimensional provisions, including those calling for a 'visual buffer' between lots, on an already nonconforming lot, then such an intrusion can confer standing." Id., at 520, 521 (emphasis added). The authority to conflate view-based claims of aggrievement-which are not typically cognizable-with density-related claims-which are-derives from a principle of standing law that the panel in Marhefka appears to have invented out of whole cloth: "a protected interest can also arise implicitly from the intent of the by-law's provisions." Id., at 519, citing Sheppard, supra, at 12. There is no need to consider the particulars of a bylaw to determine whether density is something that the zoning law is intended to regulate. All zoning regulates density, through dimensional requirements. Density is not a specially-protected interest; it is generally cognizable under G. L. c. 40A. Nevertheless, regardless of its questionable foundation, Marhefka has added to a body of law that has, in recent years, made it easier for abutters to challenge their neighbors' permits. View once was a generally non-cognizable interest under Massachusetts zoning law. With Marhefka, it has been subsumed under density.

The last big appellate-level blow to developers' ability to defeat abutter appeals based on lack of standing came from the Supreme Judicial Court in 2012: 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 (2012). The first problem with 81 Spooner is that it ratifies Marhefka's analytical framework: that "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." Id., at 700 (emphasis added). Previously, the dichotomy was not between explicitly and implicitly protected interests. Instead, it was between concerns generally cognizable under G. L. c. 40A, such as density, traffic, storm water management, sufficiency of utilities and facilities, and interests specially protected under the explicit text of a local bylaw. See Martin v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 146 (2001).

Technically, the dispositive question posed in 81 Spooner was "what evidence a defendant must produce, in the context of summary judgment, to rebut successfully [an abutter's] presumption of standing." Id., at 702. At first blush, the court's answer seemed great for developers. The court answered that, "[f]irst, and perhaps most simply, a defendant can rebut the presumption by showing that, as a matter of law, the claims of aggrievement raised by an abutter, either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect." Id. "An abutter can have no reasonable expectation of proving a legally cognizable injury where the Zoning Act and related zoning ordinances or bylaws do not offer protection from the alleged harm in the first instance. In such circumstances, the defendant will have rebutted the plaintiff's presumption of standing." Id.

The court described the second method of rebutting the presumption as follows: "where an abutter has alleged harm to an interest protected by the zoning laws, a defendant can rebut the presumption of standing by coming forward with credible affirmative evidence that refutes the presumption." Id. (Emphasis in original). The court, then, acknowledged the principle articulated in Standerwick, addressed in my previous post: "where a plaintiff acknowledges during discovery a lack of substantive evidence to establish a legally cognizable injury, a defendant may rely on those admissions to rebut the plaintiff's presumption of standing, rather than presenting independent evidence that would warrant a finding of no aggrievement." Id., at 703-704. However, the 81 Spooner court, thereafter, proceeded to gut this principle.

The court reviewed the plaintiffs' deposition testimony, in which they complained that they were "damaged 'financially and esthetically', that "'[t]he house is crowded in and not [in] keeping with the other houses on the street and stands out in a not positive way'", that the house "'shuts off'" and "'spoils [their] view'", and that "'[i]t's too big a house on too small a lot.'" Id., at 704. According to the court, this testimony identified a cognizable injury and failed to rebut the plaintiffs' presumption of standing. "Although not versed in the terminology of zoning law, the [plaintiffs'] testimony clearly indicates that one of their allegations of aggrievement was that construction of the house at 71 Spooner Road violated the density provisions of the zoning bylaw. . . Simply put, they identified a legally cognizable injury." Id., citing Sheppard and Dwyer, supra (emphasis added). Moreover, this testimony, the court concluded, "did not constitute evidence 'warranting a finding contrary to the presumed fact' of aggrievement." Id., at 705, quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 258 (2003). It "did not show . . . that the [plaintiffs] had no factual basis for their claim of harm, namely, the overcrowding of [their property] that negatively affected the density of the neighborhood." Id. Thus, the court held that "the developer failed to rebut the [plaintiffs'] presumption of standing." 81 Spooner makes it much more difficult for a developer to challenge an abutter's standing in various ways.

First, if this quoted testimony does not demonstrate the lack of a factual basis for individualized harm, then it is unclear what would do so. Thus, 81 Spooner has effectively rung the death knell for the evidentiary and procedural framework the court previously set forth in Standerwick-which framework harmonized zoning litigation practice with the applicable law under Mass. R. Civ. P. 56(b). Second and even more perniciously, 81 Spooner has ratified and expanded Marhefka's conflation of density with other claims of harm that have never otherwise been recognized as conferring standing under G. L. c. 40A. Now, everything, ugly view, loss of value, the architectural integrity of the neighborhood-all things that are beyond the scope of zoning-they are all density-based harms. Third and final, there is now no need to show individualized harm. As an abutter, it is enough to be in proximity to a putative density violation and, then, she will have automatic standing. See O'Connell v. Vainisi, 82 Mass. App. Ct. 688, 692 (2012) ("[a]lthough many of the [plaintiffs]' stated concerns can be characterized as aesthetic ones, they also plainly included concerns about the crowding that resulted from the construction of a 'massive' new structure that 'looms' over their yard"). Now, it is the violation itself that is the harm.

These cases, culminating with 81 Spooner, have thrown standing law on its head. The ripple effects can be seen in the trial courts. Today, decisions are issued from the trial courts, which, for instance, conclude that diminution of value-an interest that the Supreme Judicial Court has specifically held not to be a proper interest of zoning law-is a specially protected interest under a local bylaw. See Bostek v. Entergy Nuclear Generation Co., 2014 WL 3954220, at *14 (Mass. Land Ct.). At this juncture, developers have to seriously consider whether to even mount standing challenges, and wait for the pendulum to swing back to reality.

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

Copyright (c) 2011-2015 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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