Freedom From Overcrowding As the Grounds for Standing in a Zoning Appeal

Not everyone can challenge the granting of zoning relief. Under the Zoning Act, MGL Chapter 40A, only a “ person aggrieved” by a zoning decision may appeal for judicial review of that decision. See MGL ch. 40A, §17. Such person who suffers some infringement of legal rights is said to have “ standing,” that is, access to challenge the decision of a municipal board in court. So the issue of standing is present in every zoning appeal. There are three elements of standing that every plaintiff must satisfy: (1) there must be a plausible demonstration that a proposed project will injure a private legal interest of the plaintiff; (2) the private legal interest injured must be an interest that the zoning regulation at issue is intended to protect; and (3) direct facts, not speculative personal opinions, must show that the injury is special and different from the concerns of the rest of the community.

Although, under the case law, courts do not define narrowly the aggrievement necessary for standing, courts do require a showing of more than minimal or slightly appreciable harm. For example, a concern for open space, architectural style, historic preservation, or aesthetics would ordinarily not be a sufficient harm. Even a claim of diminution of property value would only support standing if derivative of or related to the interests protected by the applicable zoning regulation.

In a case decided in 2012, however, the Massachusetts Supreme Judicial Court (SJC) made it clear that abutters raising unrefuted issues related to overcrowding have standing to challenge further construction in an already overly dense zoning district. The case is 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline, 461 Mass 692 (2012). With controversial projects typically involving a proposed building or addition in excess of the by right limitations, 81 Spooner Road should serve to give a boost to neighbors seeking to challenge those projects. But remember, this is just a question of standing, the right to be heard in court. A plaintiff would still have to prevail on the merits of the appeal to win the case.

In 81 Spooner Road, the developer divided a large lot containing a single family house into two (2) lots, each in compliance with the minimum lot requirements under the local zoning bylaw; one lot containing the existing single family house and the other lot upon which the developer proposed to construct a new single family house. After the developer obtained a building permit for the new house, the neighbors on each side of the original lot requested that the building commissioner rescind the building permit for reasons related to the maximum floor-toarea ratio (FAR) allowed in the applicable zoning district. FAR limits the total floor area of a building on a lot to a certain percentage (in this case, 30%) of the area of the lot. The neighbors claimed that the developer could not build on the new vacant lot because the existing house, now without the benefit of the area of the entire original lot, exceeded the allowable FAR (this is known as “infectious invalidity,” the principal being that a property owner may not create a valid building lot by dividing it from another parcel rendered nonconforming by such division). In addition, they argued that the proposed house also exceeded the allowable FAR. In both cases, the issue turned on whether certain attic space was considered habitable or not.

After proceedings in the Zoning Board of Appeals, the dispute continued in the Massachusetts Land Court and the developer moved for summary judgment on the ground that the neighbors lacked standing. The neighbors alleged that they were “aggrieved” persons for eight reasons, including that the proposed house would destroy the open, suburban feel of their neighborhood, interfere with their view and privacy, and violate the density provisions of the zoning bylaw. Under the Zoning Act, abutters are presumed to have standing and the adverse party must overcome that presumption either by showing that, as a matter of law, the claims of aggrievement raised by an abutter are not interests that the zoning regulation intended to protect or by offering credible evidence contrary to the presumed fact. The Land Court found that the neighbors had standing (and with multiple plaintiffs, only one needs to be an “ aggrieved” person to establish standing) and the developer appealed.

The SJC determined that the testimony of the neighbors, although not versed in the terminology of zoning law, clearly indicated that one of their allegations of aggrievement, and they only needed to prove one to establish standing, was that the construction of the proposed house violated the density provisions of the zoning bylaw. Thus, they identified a legally cognizable injury. Because the developer did not show that the neighbors had no factual basis for their claim of harm, namely, the overcrowding of the vacant lot that negatively affected the density of the neighborhood, the SJC agreed that the neighbors had standing. As one would be hard pressed to show no factual basis for such a claim in the typical case, most neighbors seeking to challenge a zoning decision in court that involves a regulation related to neighborhood density should be able to establish standing and thereby obtain the opportunity to adjudicate the merits of the appeal.


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