Beveridge & Diamond
 

SJC Raises the Bar for Standing

Beveridge & Diamond, P.C. Land Use Alert, April 14, 2011

In a setback to development opponents, the Massachusetts Supreme Judicial Court has announced that persons challenging zoning approvals must offer “credible evidence” proving that they will be “injured or harmed by proposed changes to an abutting property,” and can no longer rely on claims that “they simply will be ‘impacted’ by such changes.” Kenner v. Zoning Bd. of Appeals, 459 Mass. 115, 122 (2011). Challengers must show “more than minimal or slightly appreciable harm” in order to have standing to maintain an appeal. Rather, “adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement.... To conclude otherwise would choke the courts with litigation... where...[project opponents] have not been... truly and measurably harmed....” (Emphasis added.)

The Hiebs sought and obtained a Special Permit to raze, reconstruct and expand their home near the Chatham waterfront. Although the home’s footprint was unchanged, the proposed height of the new home was seven (7) feet taller than the existing home.  The Hiebs’ home is located between the Kenner’s residence and the Atlantic Ocean. The Kenners appealed the Special Permit claiming, among other things, that the taller structure would obstruct their ocean view. The Kenners testified as to their personal opinions that the increased height would diminish their enjoyment of the property and impact their views and vistas from their dining room, deck, and screened porch.  They also introduced photographs with superimposed images to show the extent of the obstruction of their ocean view. A view of the property was also taken.

After trial, the Land Court (Trombly, J.) ruled that even though the Kenners' complaint that the increased height would block their ocean view was the type of “individualized harm” needed to demonstrate standing, “any impact of the increased height...on the Kenners' view ocean was de minimis [(so minor as to be disregarded)] and, as such, was not sufficient to confer standing on the Kenners.”  The Appeals Court reversed and, on further appellate review, the Supreme Judicial Court upheld the Land Court’s judgment. 

The Kenner Court recited the established standing case law. “The right or interest asserted by a plaintiff...[in a zoning appeal] must be one that G. L. c. 40A is intended to protect. Generally speaking, concerns about the visual impact of a proposed structure on an abutting property are insufficient to confer standing. However, where a municipality's zoning bylaw specifically provides that...the visual impact of a proposed structure [must be considered], this ‘defined protected interest may impart standing” to the project opponent. Since the Chatham Zoning Bylaw calls for review of a project’s "[i]mpact of scale, siting and mass on neighborhood visual character, including views, vistas and streetscapes," the  Kenner’s were required to prove both (1) particularized harm to their own property and (2) a detrimental impact on the neighborhood's visual character to establish standing.  This they failed to do.

Since the Court could not conclude that the Judge’s ultimate finding was “clearly erroneous,” it upheld the Land Court. After Kenner, trial courts will be more likely to scrutinize the quantity and quality of the evidence of actual harm offered by project opponents to establish standing, and less likely to automatically assume standing when an opponent invokes impacts. Similarly, the case serves as reminder to appellate courts not to substitute their judgment of what constitutes standing for that of the trial court.

For more information, please contact Brian Levey at blevey@bdlaw.com.