March 9, 2020

Abutter Must Prove Particularized Injury to Confer Standing in Zoning Appeals

By Christopher K. Sweeney

On March 6, 2020, just a day after hearing oral argument, the Supreme Judicial Court reaffirmed the longstanding principle that abutting landowners have standing to challenge the application of zoning bylaws only if they prove that they have suffered a particularized injury because of the alleged violation. In doing so, the Court rejected an Appeals Court ruling that, intentionally or not, conferred automatic standing on abutters to challenge the application of density-related bylaws to residential building projects.

The Facts

In 2016, the defendant developer applied for a permit to build a single-family home on a three-acre vacant lot in Sherborn. Sherborn’s building department found that the developer’s proposal complied with all applicable zoning bylaws and issued the requested permit. The plaintiffs, a husband and wife who lived more than 60 yards away from the vacant lot, appealed that decision to Sherborn’s zoning board of appeals. They argued that the developer’s proposal failed to comply with the town’s minimum-lot-width bylaw. The ZBA disagreed and affirmed the issuance of the developer’s permit.

The plaintiffs appealed the ZBA’s ruling to the Land Court under G.L. c. 40A, § 17 of the Zoning Act.

The Land Court Action

As a threshold issue, the Land Court considered whether the plaintiffs had standing to challenge the ZBA’s decision. Under the Zoning Act, abutters enjoy a rebuttable presumption that they have standing to challenge a decision concerning a neighboring property. But this presumption does not confer standing per se. Instead, the defendant may rebut the presumption of standing by showing that the abutter’s claims are not within the class of interests the Zoning Act is meant to protect or by proving that the abutter, in fact, suffered no actual harm. If the defendant succeeds in rebutting the presumption of standing, the abutter must offer proof of a particularized injury causally related to the alleged zoning violation.

Applying these standards, the Land Court concluded that the plaintiffs lacked standing. Although the construction of a house, as proposed, would of course increase the density of the neighborhood, the court concluded that increased density alone was not a particularized legal injury. And while the plaintiffs did allege that the proposed construction would increase the noise, lighting, traffic, and storm water runoff in the neighborhood, the court held that those increases would, at most, cause the plaintiffs only de minimis injury given that their property was 60 yards from the vacant lot. Accordingly, the court dismissed the plaintiffs’ complaint for lack of standing without reaching the merits of the plaintiffs’ claims.

Again, the plaintiffs appealed.

The Appeals Court

The Appeals Court reached a different conclusion. Rather than viewing density as a neutral term, it concluded that by enacting density-limiting bylaws, the town had declared that an increase in neighborhood density constituted an injury per se to abutters. Accordingly, the Appeals Court concluded that the developer’s violation was sufficient, without more, to confer standing on the plaintiffs.

This time, the developer appealed.

The Supreme Judicial Court

Only a day after hearing oral argument, the SJC issued an order reversing the Appeals Court and affirming the Land Court’s judgment in favor of the ZBA and the developer. The Court indicated that a written decision will follow with the Court’s detailed analysis.

Takeaways

The SJC’s quick ruling in favor of the developer seems to send a signal that the Appeals Court overstepped in expanding the scope of abutter standing in zoning cases. While we will not know the SJC’s reasoning until it releases its written decision, this much is clear: The violation of a zoning bylaw, even if proven, does not confer standing on abutters unless they can prove a particularized injury, i.e., an injury apart from the violation’s impact on the community at large. Further, the SJC’s ruling reaffirms that mere impact is not the same as injury. That is, it does not matter that constructing a house will impact the plaintiffs’ view of a vacant lot. The plaintiffs were required to show that the construction would cause them injury in fact, i.e., a non-speculative injury serious enough that the law provides a remedy. Where the plaintiffs’ property was a full 60 yards from the vacant lot, the plaintiffs were unable to make such a showing.

Aside from resolving this particular case, the SJC’s ruling will have broader implications for the real estate industry. Most significantly, the Appeals Court’s decision – had it been permitted to stand – would have increased the probability of litigation between developers and abutters. Faced with a high likelihood of litigation, developers likely would have eschewed residential construction entirely or increased their prices to offset their legal fees, lost opportunity costs, additional carrying costs, and other costs. Either course of action would have exacerbated the Commonwealth’s already short supply of affordable housing. Fortunately for developers and housing-rights advocates, the SJC stepped in to preserve the status quo.

Stay tuned for an update when the Court’s written decision is made available.