We are
the authors of a recently-filed Amici Brief, on behalf of REBA and The Abstract
Club, with the Supreme Judicial Court,
In Murchison,
the plaintiffs appealed the issuance of a foundation permit issued to the
defendants for their proposed construction of a single-family residence on a
three-acre lot. The defendants’ property is located across the street from the
plaintiffs’ home. The plaintiffs alleged that the defendants’ proposed
single-family residence, as well as the property on which it was to be built,
violated the Sherborn Zoning Bylaw’s lot width requirement. After trial, the
Land Court, Scheier, J., dismissed the appeal, finding that the plaintiffs
lacked standing to maintain the lawsuit, reasoning, in part, as follows:
Plaintiffs cite several cases in support of the argument
that density-based claims of harm can confer standing. This court does not take
issue with the theoretical premise but the cases cited have significantly
different factual contexts and largely present challenges to construction on
undersized lots which have merged with adjacent lots in areas where ‘existing
development is already more dense than the applicable zoning regulations allow.’
Dwyer v. Gallo (2008); see also, e.g., Mauri v. Zoning
Bd. of Appeals of Newton (2013); Marhefka v. Zoning Bd. of Appeals of
Sutton (2011). While the cases cited by Plaintiffs might allow, they
certainly do not compel a ruling in this case that Plaintiff has established particularized
harm to them by the proposed construction based on increased density.
Based on Mr. Murchison's testimony, this court finds Plaintiffs simply do not
want any construction on Lot 69F.
Murchison v. Novak, 26 LCR 278, 280-281
(Scheier, J.). Judge Scheier’s reasoning is sound and conforms to longstanding
case law. Density based harms can be the basis for a claim of injury and,
therefore, standing; however, the mere fact that an abutter plaintiff has identified
a genre of injury that is cognizable under the Zoning Act or the local
zoning bylaw or ordinance does not mean that a plaintiff has proven an
individualized injury of this legally-recognized sort will flow from
the local board’s decision.
On the
plaintiff’s appeal, the Appeals Court got tangled in the admittedly difficult
and dense web of standing case law under the Zoning Act. The Appeals Court’s
first error was to conflate the distinct inquires of the plaintiffs’ claimed
injury for standing, with that of the merits of the underlying zoning appeal. This
flaw in reasoning is best demonstrated by the following passage:
There is no platonic ideal of overcrowding against which
the plaintiffs' claim is to be measured. Although the distance between the
houses might not amount to overcrowding in an urban area, absent some
constitutional concern, which the defendants do not argue exists in this case, cities
and towns are free to make legislative judgments about what level of density
constitutes harm in various zoning districts and to codify those judgments in
bylaws. It does not matter whether we, or a trial judge, or the
defendants, or their counsel, would consider the district ‘overcrowded.’ What
matters is what the town has determined.
Murchison, 96 Mass. App. Ct. at 164-165 (emphases added). This
passage suggests, erroneously, that town meetings and city councils enact
zoning for the purpose of defining abutter standing. That is simply not the
case. Instead, they are making zoning determinations for the community as a
whole, exercising the Police Powers. In certain instances, in which they create
specially-protected interests, these local laws may provide a legal basis for cognizability,
but they do not define whether an abutter has been harmed or not.
In some
instances, practically speaking, it is true that if a municipality has adopted,
for example, three-acre zoning as Sherborne has in Murchison, then this
legislative choice may make it factually more difficult for an
abutter-plaintiff to prove that he will be harmed by a local zoning decision.
However, while it may have an impact on the likelihood that an abutter will
suffer harm from a local zoning decision, municipal zoning does not, and
cannot, define or provide the evidentiary basis for
an injury-in-fact for the purposes of G. L. c. 40A, § 17. Rather, it governs
the legality of local zoning decisions. To reach the opposite conclusion, the
Appeals Court mistook the local law that controls the merits, as authoritative
with respect to the question of injury, but an injury is an injury—it is an
objective, factual inquiry, not a sliding scale from community to community.
The
Appeals Court’s second error was that it, in essence, dispensed with the
factual requirement of demonstrating an individualized injury-in-fact. This
error is on display, in the following passage:
if the plaintiffs' arguments on the merits are correct,
then the alleged bylaw violations would allow a house to be built closer to the
plaintiffs' house than the density provisions of the bylaws permit. The
plaintiffs have shown that they are across the street from the proposed
development. The harm to a property owner from having a house across the street
closer to his or her own than is permitted by the density-protective bylaws is
different in kind from that suffered in an undifferentiated fashion by all the
residents of the neighborhood. It is sufficiently particularized to support a
claim of standing to challenge the alleged violation.
Murchison, 96 Mass. App. Ct. at 164-165 (footnote omitted). In the
footnote corresponding to this analysis, the panel further asserts that “[i]t
is the fact of the placement of the house on the lot across the street from the
plaintiffs that demonstrates particularized harm to the plaintiffs, not the
mere violation standing alone.” Id. at 165 n. 5. However, “the placement
of the house on the lot across the street from the plaintiffs” is itself
merely the “violation standing alone.” This reasoning is totally tautological
and circular. Using a different phrase to refer to the same thing does not
somehow make the thing different, if the meaning of the words making up the
phrase communicate the same meaning and content. If such circularity must be
employed to reach the desired outcome, then a court should revisit what is the
desired outcome.
In
addition, this reasoning is directly at odds with longstanding, binding
density-based case law, which has uniformly required more than a claimed
violation of density regulations in order to demonstrate aggrievement. See
e.g. Sweenie v. A.L. Prime Energy (2008), (“[e]ven if the bylaw
under which the planning board granted A.L. Prime's special permit created and
defined a protected interest . . . this alone is not a sufficient basis on
which to confer standing.”) (internal citations omitted). “The 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.,
quoting Standerwick v. Zoning Bd. of Appeals of Andover (2006).
The
practical effects of the Appeals Court’s legal errors could be widespread and
alarming. From our perspective, abutters will be able to stymie development with
nothing more than the incantation of the word “density.” Every zoning appeal by an abutter (which represents
the vast majority of appeals) will have to be determined on the merits of the
case, as a standing inquiry would be effectively resolved in the abutter’s
favor, no matter how conjectural / speculative / hypothetical the alleged
injury to the abutter may be. In cases in which the lawfulness of a permitted
development’s density is at-issue, this means years of delay and tens of
thousands to millions of dollars in additional costs, if not the death knells
tolled for these projects. And please do not be lulled into the false idea that
only large developers will suffer from this decision. Every property owner
would be at risk. If you get a special permit to install an in-ground pool in
your backyard, then that pesky neighbor, who always complains about the noise
from your children playing in the backyard, will be just as able to run you
through the litigation ringer, no matter how baseless the claim.
Beyond
the foregoing, it is no secret that Massachusetts is in the middle of a housing
crisis. Don’t take our word for it; the Home Builders and Remodelers
Association of Massachusetts, Inc. (the “HBRAMA”), which also filed an Amicus Brief, provides the cold hard facts. “In
the last decade, the commonwealth had the fourth lowest rate of housing
production in the nation”. HBRAMA Amicus Brief, pg. 11. “No matter how many
current homeowners put their houses on the market, there simply is not enough
housing to meet demand, moderate prices, or close the affordability gap.
Massachusetts needs new home construction of all types that individuals and
families of all incomes can afford.” Id. “The Metropolitan Area Planning
Council …, estimates that more than 400,000 new housing units will be needed by
the year 2040 if the region is to keep growing its economic base.” Id.
at pg. 12. Alarmingly, not only do we not presently have enough housing supply,
but the rate of new home construction is down over the last 15
years. “In 2005, 25,549 residential building permits were issued in
Massachusetts, of which 14,585 were for new single-family homes. In contrast,
in 2018, 17,044 residential building permits were issued, of which a mere 7,169
were for single-family homes.” Id. at 13. If Murchison stands,
then these long-term trends and the current housing crisis will only be
exacerbated, and significantly so. REBA and the Abstract Club have requested that
the SJC intercede, because, apart from having such dire practical effects, the
Appeals Court’s decision also happens to run afoul of the standard for standing
as previously articulated by the appellate courts in Massachusetts.
Abutters already enjoy a
rebuttable presumption of standing under the Zoning Act. Hopefully, the SJC
will decide that demonstrating a particularized injury in-fact is still
required in the Commonwealth as well.
Nick Shapiro and Robbie
Hopkins practice with the Boston firm of Phillips & Angley. Robbie co-chairs the REBA new lawyers
section; Nick co-chairs the land use and zoning section
Robbie concentrates his
practice on zoning, land use, and real estate litigation. Prior to joining the
firm, he was a law clerk to Land Court Chief Justice Judith C. Cutler. In 2019, he was honored with the REBA
Emerging Leader Award. Robbie can be
contacted by email at rhopkins@phillips-angley.com.
Nick appears predominantly
before the Massachusetts Land Court. However, in his time at Phillips &
Angley, Nick has argued all manner of motions and appeals before every level of
the Massachusetts judiciary, from the District Court to the Supreme Judicial
Court. During his tenure at Phillips & Angley, he has argued eight appeals
before the Massachusetts Appeals Court and the Supreme Judicial Court. In 2017,
he was honored with the REBA Emerging Leader Award. Nick’s email address is nshapiro@phillips-angley.com.
