By Thom
Aylesworth
Massachusetts is a
hotbed of zoning disputes. Modern zoning bylaws adopted by municipalities
across the Commonwealth have inevitably spawned fights among neighbors over permits
and other decisions made by local zoning boards. Typically, such disputes
involve concerns over increased traffic, noise, overcrowding of land (a/k/a,
“density”), open space, ocean views, and many other impacts. Navigating the
murky waters of the law governing legal challenges to zoning board decisions
can be challenging to those new to the world of Massachusetts zoning,
particularly on issues of “standing” – i.e., whether a neighbor or other
affected person or entity has the right make a legal challenge to a zoning
board decision.
Modern zoning
bylaws adopted by municipalities across the Commonwealth have inevitably
spawned fights among neighbors over permits and other decisions made by local
zoning boards.
If you do not
satisfy the legal requirements for standing, you are prohibited from
challenging a decision issued by a local zoning board. For example, if your
neighbor obtains a special permit to build shopping center next door, you can
file a court appeal of the permit only if you have legal standing. Standing is
a threshold requirement, meaning that you cannot challenge the permit allowing
the shopping center, even if the permit is illegal, unless you have standing.
1. Only parties
aggrieved by a substantial and particularized injury have standing to appeal a
local zoning board decision.
The rights of
parties to appeal zoning board decisions are governed by a statute,
Massachusetts General
Laws Chapter 40A, Section 17. Under Section 17, only a “person
aggrieved” by a decision of a local zoning board has standing to bring a court
appeal of that decision. The question of standing, therefore, turns on the
meaning of “aggrieved.” Under Massachusetts law, not every harmful impact
caused by a zoning board decision is an aggrievement. To establish standing,
the injury to the appealing party must be particular and different from the
rest of the community, and the harm must be more than minimal or slightly appreciable.
So, the mere fact that the new shopping center next door will significantly
increase traffic on your street may not be enough to create standing, because
the traffic affects your whole neighborhood, not just you. If, however, the new
shopping center includes a traffic light that backs up traffic in front of your
driveway, creating lengthy delays when leaving your home, that might be a
substantial and particularized harm that creates standing.
But not every
particularized harm will create standing. The law requires that the private
interest the aggrieved party seeks to protect must be within the scope of the
intended protections of the statute, Chapter 40A, or the local bylaw.
Consequently, Massachusetts courts have generally rejected standing arguments
based on the appealing party’s disapproval of architectural or visual elements
of a project, except in cases where a local bylaw expressly requires the
permitting board to consider the visual impact of a proposed structure.
Moreover, it is common for an appealing party to argue that his/her/its
property value will be diminished by a project approved under a zoning permit.
Massachusetts courts have determined, however, that diminution of property
value is not, alone, a ground for standing, otherwise any person challenging a
zoning permit or other decision could get around the standing hurdle merely by
asserting a loss of property value. The only exception is where a local zoning
bylaw expressly is intended to protect property values, in which case a loss of
property value may create standing.
What are the
private interests that do create standing? There is no bright line test, and
the issue requires consideration of the particular facts presented, Chapter
40A, and the applicable local zoning bylaws. Impacts such as
significant noise, dust, odors, loss of light and air, increased traffic,
reduced public parking, and overcrowding of land may create standing, although
this list is not exhaustive. Conversely, concerns over aesthetics, appearances,
architecture, etc. typically will not create standing, absent a local zoning
bylaw that protects such concerns.
2. Abutters enjoy
a rebuttable presumption of standing.
Under the law, any
abutter to land that is subject to a zoning board decision enjoys a “rebuttable
presumption” of standing, meaning that the abutter does not have to prove
standing unless and until the defending party offers evidence showing there is
no substantial particularized harm to the abutter. If the defending party does
offer such evidence, then the burden of proof shifts to the abutter. Evidence
of the abutter’s speculative personal opinions about the impacts of the board’s
decision is not enough. Instead, proof of standing must be shown by facts,
often through sworn statements or testimony of experts.
It is not unusual
for a court to dismiss an appeal of a zoning board decision early in the case
if the appealing party lacks standing. Accordingly, even though an abutter has
the presumption of standing, the appeal may be dismissed in short order if the
defending party offers evidence to rebut the presumption, and the abutter is
not prepared to meet the burden of proof to establish standing.
Anyone faced with
a question of standing in bringing or defending against an appeal of a local
zoning board decision is well-advised to consult with an attorney to discuss
the attending facts in the context of the applicable zoning law and local
bylaws.
Should you have any questions regarding this article,
please contact Thom Aylesworth at 781-817-4900 or by email at
taylesworth@lawmtm.com.
