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.
By the mid to late 2000s, the developers' bar had reason to be happy. In 2006, the Supreme Judicial Court issued its decision in Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 (2006). The case itself technically only concerned standing under G. L. c. 40B and whether diminution in property values was a cognizable injury under the statute (the answer, intuitively was no-affordable housing by definition will lower property values because it is affordable).
However, in Standerwick, Chief Justice Marshall writing for the Supreme Judicial Court took the opportunity to clarify standing law for the purposes of G. L. c. 40A, as well. In this regard, the court reiterated and articulated a number of developer-friendly principles for the standing inquiry:
· Abutters Have to Prove Individualized Injury and Cognizability. "[S]tanding to challenge a zoning decision is conferred only on those who can plausibly demonstrate that a proposed project will injure their own personal legal interests and that the injury is to a specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect." Standerwick, supra, at 30.
· Diminution of Value Must Be "Tethered" to Zoning Injury. Because "zoning legislation 'is not designed for the preservation of the economic value of property, except in so far as that end is served by making the community a safe and healthy place in which to live'", "[a] claim of diminution of property values must be derivative of or related to cognizable interests protected by the applicable zoning scheme." Id., at 32, 31-32, quoting Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495, 503-504 (1940). Abutters cannot merely rely upon claims of diminution of value.
· Abutters' Presumption of Standing Does Not Alter Burden of Proof. "A presumption does not shift the burden of proof; it is a rule of evidence that aids the party bearing the burden of proof in sustaining that burden by 'throw[ing] upon his adversary the burden of going forward with evidence.'" Standerwick, supra, at 34, quoting Epstein v. Boston Hous. Auth., 317 Mass. 297, 302 (1944). Abutters still have to prove standing.
· Presumption Can Be Rebutted by Affirmative Evidence and Showing Plaintiff Lacks Evidence. "In a summary judgment context, a defendant is not required to present affirmative evidence that refutes a plaintiff's basis for standing. It is enough that the moving party 'demonstrate[ ], by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving' a legally cognizable injury." Standerwick, supra, at 35. Thus, a "developer [i]s not required to support its motion for summary judgment with affidavits on each of the plaintiffs' claimed sources of standing; its reliance on the plaintiffs' lack of evidence as to the other claims, obtained through discovery, ha[s] equal force." Id., at 35-36. In short, a "developer may rebut a presumption by seeking to discover from [the] plaintiff the actual basis of [his] claims of aggrievement. If a person claiming to be aggrieved can point to no such evidence, a party seeking summary judgment is entitled to rely on that fact." Id., at 37.
As can be seen, Standerwick provided a huge amount of fodder for the developers' bar. The pro-developer progression, however, did not end there.
Two years later, the pendulum continued to swing in the developer's favor when the SJC handed down its decision in Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 (2008). In Sweenie, Chief Justice Marshall, again writing for the court, reaffirmed the prior appellate case law holding that even matters that are not traditionally within the scope of zoning, such as aesthetic considerations, can be specially-protected by particular local bylaw provisions. See id., at 543-544. However, Chief Justice Marshall went on to explain that
[t]he language of a bylaw cannot be sufficient in itself to confer standing: the creation of a protected interest (by statute, ordinance, bylaw, or otherwise) cannot be conflated with the additional, individualized requirements that establish standing. To conclude that a plaintiff can derive standing to challenge the issuance of a special permit from the language of a relevant bylaw, without more, eliminates the requirement that a plaintiff 'plausibly demonstrate' a cognizable interest in order to establish that he is 'aggrieved.'
Id., at 545. Special cognizability is not enough for an abutter; she must show an individualized injury to that special interest with credible evidence.
Finally, in 2011, the court struck again, for developers and permit holders, in Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 (2011). In Kenner, the SJC, answering a longstanding open question, held that "[a]ggrievement requires a showing of more than minimal or slightly appreciable harm." Id., at 121. In other words, standing has a de minimis exception; if a harm is slight enough, there is no legally-cognizable injury and no standing. The standard the court articulated, however, is at once tautological and vague: (1) "The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy"; or (2) "[t]he analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be 'impacted' by such changes." Id., at 122. Despite the lack of clarity in its standard, this decision clearly provided another tool for the developer to use to kick abutter appeals out of court, without reaching the merits, on the question of harm.
In sum, by the close of 2011, things were looking up for developers in combating abutter zoning appeals. All of this would end soon, however, the following year, as the pendulum swung back towards abutters. Stay tuned in for the next post!
Written 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.