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Retail Tenant Law

Clearing The Murky Waters of Standing in Zoning Appeals

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.

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Thom Aylesworth