Massachusetts standing laws and zoning appeals: standing on shaky ground after Kenner v. Zoning Board of Appeals.

• Author: Lidington, Beth

[N]early all the residences are built along the water front of said bay, and facing east, commanding a beautiful view of said bay ... and its real estate derives almost its whole value from this fact, and from its commanding view of the waters of [the] sound, and the fact that cool breezes which habitually and daily blow ... over this sound, and thus reach the residences ... and [provide] relief from summer heat. (1)

1. INTRODUCTION

   Zoning laws in the United States came into existence at the turn of the twentieth century and were deemed constitutional under state police power. (2) Since zoning's inception, states have delegated the bulk of zoning authority to local municipalities, and accordingly, this area of the law is quite diverse. (3) The manifold nature of zoning is strikingly evident at the judicial-review level, where courts grapple with upholding zoning's legal underpinnings, while at the same time maintaining deference to local decision-making. (4) The interplay between state and local authorities results in a body of law that can be, at times, contradictory and unpredictable. (5)

   To have standing to oppose an act of a local zoning board, Massachusetts law requires a person to be "aggrieved"; however, courts' attempts to define aggrievement have yielded inconsistent results. (6) Recently, in Kenner v. Zoning Board of Appeals (7) the Massachusetts Supreme Judicial Court (SJC) attempted to clarify the standard, but only managed to further shroud standing laws in confusion and ambiguity. (8) In essence, the SJC raised the bar for threshold standing determinations, and in doing so, utilized vague and imprecise language in defining aggrievement. (9) In addition, the SJC created potential disruption in the well-settled area of the law of particularized harm. (10)

   The SJC articulated its new standard against the backdrop of a common occurrence in Massachusetts: an abutter opposing a special permit granting a structural-height increase that will effectively block scenic views. (11) First determining that the local bylaws at issue do not protect view-based harms, the court went on to hold that the new standard for determining standing requires that "[t]he adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy." (12) In addition, the SJC erroneously asserted that in order to achieve standing, a party must not only show that the view-based harm is particularized and specific to her property, but also that the community is harmed as well. (13) Requiring a showing of community harm expressly contradicts the well-settled rule that a plaintiff must offer evidence of harm particular to her--not shared by the community. (14)

   This Note will analyze standing laws in Massachusetts primarily through the lens of view-based harm. (15) Part II.A will include an analysis of basic standing principles within the context of zoning in Massachusetts. (16) Part II.B will analyze pre-Kenner standards for standing and their implication on Massachusetts standing jurisprudence. (17) Part II.C will explore Kenner and its impact on recent Massachusetts appellate decisions. (18) Part III.A will analyze the problems created by the Kenner decision, while clarifying the issue of particularized harm. (19) Finally, Part III.B will include a proposed standard that incorporates the courts' goals for standing, while providing a clear and consistent application. (20)

2. HISTORY

   1. Standing Laws in Massachusetts: The Basics

      Standing laws in Massachusetts are not derived from the state's constitution, but rather originate in practical judicial considerations and limitations. (21) While the fundamental aim of judicial review is ensuring full review of an individual's legal interests, this goal is balanced with the maximization of judicial efficiency. (22) Thus, for a plaintiff to proceed to the merits of her case, she must first satisfy the requisite standing requirements. (23) Due to the emphasis placed on administrative efficiency, standing laws in Massachusetts are arguably somewhat restrictive, and consequently, these constraints impose a substantial hurdle early on in litigation. (24)

      Massachusetts law provides that "[a]ny person aggrieved by a decision" in an administrative appeal, special permit, or variance proceeding may appeal such decision by filing suit in the appropriate court. (25) Standing is conferred on a limited class of persons whose property interests will be affected, as well as any municipal officer or board. (26) Importantly, standing is not just a technicality, but rather is a key element of all proceedings challenging administrative action. (27) However, the person-aggrieved standard is "not to be narrowly construed." (28)

      Massachusetts courts convey a historical trend toward progressively tightening standing laws. (29) Prior to 1992, plaintiffs could gain standing under a fairly generous and predictable standard that reflected courts' desires to heed the warning not to narrowly construe such a standard. (30) In 1992, however, in Barvenik v. Board of Aldermen, (31) the appeals court significantly changed course by narrowing the relevant standards, thereby altering "forty-three years of practice and procedure." (32) Before Barvenik, there was an "overwhelming likelihood" that nearby neighbors challenging a special permit would be granted standing. (33) In essence, "Barvenik and its progeny removed the predictability from standing." (34)

      Barvenik's appellate-level standards remained undisturbed until 1996, when the SJC decided Marashlian v. Zoning Board of Appeals (35) In Marashlian, the court appeared to liberalize the strict standards of Barvenik; however, although critics initially viewed Marashlian as a drastic and confusing liberalization of standing laws, its scope ultimately proved to make only minor adjustments to the existing body of law. (36)

   2. Standards for Standing: Pre-Kenner

      1. The Rebuttable Presumption

         The SJC has interpreted the notice provision of chapter 40A, section 11 of the Massachusetts General Laws to provide a rebuttable presumption of standing to those individuals who are parties in interest. (37) When a party initially seeks zoning relief, the board of appeals must adhere to various procedural requirements, including giving notice to parties in interest--a category of individuals residing within a specified area of neighboring parcels of land; essentially, abutters to abutters within 300 feet of the subject parcel. (38) This presumption of standing may be challenged by the defendant, who must offer evidence to support the challenge. (39) In the event of a supported challenge, the jurisdictional issue of standing is to be decided based on all the evidence, with no residual benefit to the plaintiff from the presumption. (40)

         Once the presumption has been properly rebutted, the plaintiff bears the burden of proof on the issue of standing. (41) This requires that the plaintiff put forth "direct facts" pertaining to aggrievement, and not mere "speculative personal opinion" that the zoning decision will cause her harm. (42) In other words, the evidence must be both quantitatively and qualitatively sufficient. (43) Quantitatively, there must be sufficient evidence of a specific factual nature, in order to adequately set forth "perceptible harm." (44) In the qualitative sense, "the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action"; mere personal opinion, conjecture, and hypothesis are inadequate to confer standing. (45)

      2. Particularized Injury: The ''Special and Different" Standard

         An accepted and widespread rule of standing--in various legal contexts--is that the harm suffered by the plaintiff must be particularized to her, separate and apart from the concerns of the community. (46) Under the common law, plaintiffs must demonstrate that the harm complained of is a private injury, particular to an individual. (47) Requiring a private injury is derived from constitutional principles, and "[t]he Supreme Court has noted that this factual injury requirement is necessary to preserve the separation of powers by limiting courts to their historical function of resolving only the rights of individuals." (48) While some critics debate both the constitutionality and the appropriateness of such a standard--usually within the context of environmental concerns--the particularized-injury standard is, nevertheless, a fundamental tenet of standing law. (49)

         In Massachusetts and other jurisdictions, particularized injury has long been a prerequisite to standing in zoning appeals. (50) A plaintiff must provide evidence to show a violation of a private right, property interest, or legal interest "that is different from that suffered by the community generally." (51) In other words, the plaintiff's injury must be "special and different." (52) In addition, the particularized injury must be based in fact, and may not be the result of mere speculation or conjecture. (53)

      3. Protectable Interests

         The aggrieved-person standard only protects those interests that the various zoning laws seek to protect. (54) Therefore, yet another component of standing to appeal zoning-board decisions is the requirement that the specified zoning consideration be one that is protected under either chapter 40A of the Massachusetts General Laws, or local bylaws set forth by the municipal authority in the plaintiff's community. (55) Accordingly, standing is limited to those with "legitimate" zoning concerns, such as parking problems, increased traffic, or potential for litter. (56) Without such a stated zoning consideration, which must then be supported by evidence, the plaintiff will be unable to gain standing and, as a result, will be unsuccessful in contesting the zoning decision. (57)

         Massachusetts courts...