“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 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 kathleen.heyer@jbllclaw.com.
