Wednesday, February 14, 2018

Standing in Plaintiff’s Shoes: Challenging a Personal Representative’s Standing Under 40A.

“The abutter doesn’t have standing” is a frequent, but often unsuccessful, argument made when a neighbor appeals a zoning board decision under G.L. c. 40A, § 17.  But what happens when
the named plaintiff passes away unexpectedly after filing an appeal?  How is standing determined? And, is it possible to challenge the standing of a personal representative of the plaintiff’s estate?  A recent Land Court decision, Zuk v. Pairseau, 2018 Mass. LCR LEXIS 15 (Land Ct. Feb. 8, 2018), demonstrates that the standing requirement passes on to the personal representative and that the standard must still be met.  In this case, the lack of knowledge of harm testified to by the personal representative to the abutting property even with the presumption of standing enjoyed by a direct abutter, the appeal was successfully challenged on standing grounds.   

The standard for standing is well-known.  To have standing, one must be a “person aggrieved.” G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 117 (2011).  Abutters and abutters to abutters within 300 feet of the subject property are entitled to a rebuttable presumption that they are aggrieved within the meaning of the statute.  Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996).  That presumption is rebutted if the defendant(s) can provide evidence that the plaintiff is not aggrieved.  Marotta v. Bd. of Appeals, 336 Mass. 199, 204 (1957).  The presumption can be rebutted by demonstrating “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,” 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 702 (2012), the offering of affirmative evidence that rebuts the presumption, id. at 703, by “by showing, in the negative, that the plaintiff lacks any factual foundation for asserting a claim of aggrievement.”  Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991).  “Once the presumption of standing has been rebutted successfully, the plaintiff then would have the burden of presenting credible evidence to substantiate the allegations of aggrievement.”  81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline,  703 n.15 (2012).

In Zuk v. Pairseau, an abutter appealed a decision of the Town of Danvers Board of Appeals approving a modification of a site plan of a long-existing nursing home which, among other changes, permitted additional parking spaces on the nursing home property with no increase in impervious pavement.  Shortly after the Complaint was filed, the abutter passed away.  His son, personal representative of the estate, was substituted as plaintiff several months later.  Defendants, who had unsuccessfully challenged plaintiff’s standing on account of his death, conducted discovery before challenging the son’s standing in a motion for summary judgment.  The defendants’ standing argument raised the following concerns: to what extent does the personal representative of an estate need to demonstrate individual standing?  Can a personal representative rely upon the aggrievement claimed by the deceased? 

To a certain extent, yes, the personal representative may adopt the position taken by the deceased, but, this does not provide a free pass guaranteeing court review of the appeal.  In Zuk, the son as personal representative of his father’s estate owned the abutting property, and therefore was entitled to a presumption of aggrievement.  However, the defendants successfully rebutted the presumption by demonstrating, after discovery, that the son had no reasonable expectation of proving a legally cognizable injury.  The son’s answers to interrogatories and deposition testimony demonstrated that, whatever aggrievement his father may have thought existed, his son was unaware of any potential harm to his property as a result of the Board’s decision.  Rather, to the extent that the son claimed aggrievement stemming from certain claimed procedural errors, he did “not articulate[] anything that could be interpreted as a harm to an interest protected by G.L. c. 40A or the bylaw.”  Zuk, at 13.  

To bolster his position, the son filed an affidavit in opposition to the defendants’ motion for summary judgment.  In this affidavit, the son adopted his deceased father’s statements of aggrievement, as set forth in the complaint and in the answers to interrogatories which his counsel had prepared, ostensibly based upon conversations with the deceased.  However, the affidavit was ineffective because a person cannot contradict by affidavit statements previously made under oath at deposition. O'Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905, 906 (1993).  The son explicitly testified at his deposition that he had no knowledge of any harm that would result from the Board’s decision.  The affidavit could not be used to contradict those statements; whatever knowledge the father may have had was not passed on to the son, who claimed “aggrievement on the grounds that the [Board] Decision increases the impact of the facility on the Zuk property and its inhabitants, with no more specificity.”  Zuk, at 14.  As the Court so aptly stated, this “does not go far enough to allege a harm to a legally protected interest.”  Id. 

Though the plaintiff lost in this instance, it is not unreasonable to expect that a similar situation may arise again.  When can the standing of a personal representative, substituted in for a deceased plaintiff, be subject to challenge: immediately after appointment?  In Zuk, after the death of the original plaintiff, agreed deadlines were set for discovery deadline and the filing of dispositive motions.  Though not an issue in Zuk, there could be conflict after the death of a party between the defendants seeking to move the case forward as quickly as possible and a personal representative plaintiff seeking additional time.   

Active in many REBA sections, Kathleen Heyer practices with the Andover firm of Johnson & Borenstein LLC.  She can be contacted at

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