Gatekeepers in Zoning Disputes

Blog, Real Estate

Posted in on March 13, 2020

Zoning disputes range from single family homes to complex commercial, residential, or mixed use developments. Regardless of the monetary value of the project from a cost-standpoint, the zoning disputes that get to court all have one thing in common – someone owning a nearby property is not happy. Anyone can talk at a local hearing about zoning-based concerns. To get to court after a decision issues, however, there is a two-part analysis. First, does the neighbor have standing to argue that there was an error with the relief granted and second, was there actually an error? For that unhappy neighbor to have a court decide whether there was a zoning error at the local level, the neighbor must also show actual harm that is particular to his or her property.

Standing is typically the main hurdle faced by plaintiffs seeking to overturn a building permit or other zoning relief granted to a construction project or development. Certain properties directly across a street, sharing lot lines, or within 300 feet and adjacent to the shared lot line abutter have presumptive standing under G.L. c. 40A, § 11, but their proximity is not enough for standing if the defendant adequately challenges harm. When the defendant presents evidence that a plaintiff would not actually be harmed, a plaintiff must show that the adverse effect from the local action will 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.” Kenner v. Zoning Board of Appeals of Chatham, 459 Mass. 115, 122 (2011).  There are a host of aspects to the test – what is the actual harm, are expert reports required, and how is the claimed harm specific to that plaintiff?

Massachusetts zoning law has focused on this standing gatekeeper to place zoning determinations with the local town or city unless the chance of error on the local level has actually harmed a nearby property. The courts are not designed to second-guess every zoning decision, and they will typically only do so if the zoning decision – right or wrong – has caused some identifiable harm to the plaintiff.

A recent case in Sherborn highlights the importance of standing as a gatekeeper and the importance of knowledgeable counsel when zoning issues are heading to court. In 2016, the Town of Sherborn issued a building permit for a single-family home on a three-acre lot. The abutters directly across the street challenged the permit by arguing that the house should not be constructed because the lot was 50-60 feet short of the 250-foot “minimum lot width” requirement in the zoning regulations.  The defendants countered that the abutters were misinterpreting the bylaws, but as a preliminary matter, the abutters were not actually harmed by the permit and the case must be dismissed. After a four-day trial in early 2018, the Land Court judge agreed that the abutters lacked standing under zoning laws and found that “Plaintiffs simply do not want any construction” on the lot across the street. Because the Land Court dismissed the case based on standing, the judge never decided whether there was any zoning error. The plaintiff-abutters appealed. The defendant property owners, both attorneys, had handled the trial court action themselves and chose to do the same on appeal. The defendants focused most of their brief on evidence presented to rebut the plaintiffs’ presumption of standing, with minimal argument about the absolute lack of harm caused by the alleged error. The Appeals Court issued a published decision on September 30, 2019, reversing the Land Court.

The Appeals Court concluded that the alleged zoning error would allow the “house across the street [to be] closer to [the plaintiffs] than is permitted by the density-protective bylaws.” In and of itself, the court found that this proximity infringement was enough to show an actual harm. The decision was contrary to many cases of established precedent. The court did not analyze the level of harm in the context of the property circumstances – these were three-plus acre sites and the trial judge found that there was no credible harm to light or air.  The defendants had asked for the case to be decided in an unpublished decision, as 80% of decisions issued by the court are handled, but the fact that the Appeals Court published the decision most likely saved the defendants from years more of protracted litigation.

After the decision issued, the defendants asked the Supreme Judicial Court (SJC) for further appellate review.  The SJC receives approximately 700 requests for further appellate review each year, and it grants about 3.5% of the requests. The Court is much more likely to grant further appellate review on a published decision because unpublished decisions are not binding on lower courts.

For the SJC appeal, the defendants hired well-recognized zoning counsel for this appeal, and the case was argued in front of the SJC on March 5, 2020. Typically a decision from the SJC will issue between 2 and 6 months after oral argument. In a very rare act, the SJC issued an order the next day affirming the Land Court (thereby reversing the Appeals Court decision).

The old adage “time is money” is especially relevant to development and construction projects. The best way to move a project forward is to resolve any neighbor issues before courts are involved, but that’s not always possible. There are methods available to shorten time frames involved in defending an appeal. Having a knowledgeable zoning lawyer at the trial and appellate level after appeal of a zoning board decision can minimize the time value lost during this process.  Please contact our real estate or litigation departments with question on this or other zoning or land use issues.  Kimberly Kroha, Esq.