Reversing Appeals Court, Massachusetts SJC Rules Abutter Standing Cannot Be Based on Bylaw Alone

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use and Real Estate Alert, 2008

Citing the established rubric governing standing in G.L. c. 40A, § 17 appeals, the Massachusetts Supreme Judicial Court reversed an Appeals Court ruling that plaintiffs appealing a special permit could “derive standing” from the language of a local bylaw without putting forth credible evidence that they were in fact “aggrieved” by the decision.  In Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 (2008), the SJC emphasized that the “language of a local bylaw cannot be sufficient in itself to confer standing.”

In this case, a group of abutters sought to challenge a special permit allowing a gas station owner to upgrade a facility from the 1940s.  The special permit authorized the razing of an existing building and its replacement with a smaller structure including a convenience store.  The permit also allowed the replacement of three old single-walled 5,000 gallon underground storage tanks with two larger double-walled tanks totaling 20,000 gallons that would be capable of rapid leak detection. 

In their appeal to the Superior Court, the abutters claimed standing based on numerous concerns including the threat of contamination to their drinking water from nearby residential wells.  The gas station operator provided evidence rebutting all of the claimed bases for standing, including a detailed description of the tanks and their construction and leak-detection systems, and a “tank plan” prepared by a professional engineer indicating the installation would comply with all federal, state and local regulations.  The Superior Court allowed a motion to dismiss for lack of jurisdiction, concluding that the abutters’ claimed bases for standing were “purely speculative.”

The Appeals Court agreed that the plaintiffs’ concerns did not rise above the level of speculation but nonetheless found plaintiffs had standing to pursue their claim that the replacement of the underground storage tanks could potentially harm their drinking water based on the language of the local bylaw.  The bylaw provided that where a special permit was sought in a water resource protection district, the board “shall give consideration to … the degree of threat to water quality that would result if the control measures failed.”  The Appeals Court concluded that because the bylaw mandated consideration of the degree of threat posed, the bylaw itself “necessarily” provided a basis for parties alleging they could be exposed to that threat to challenge the decision in court.

The SJC strongly disagreed, holding that the bylaw language alone was not a sufficient basis for standing.  It explained that to rule otherwise would eliminate the requirement that a plaintiff “plausibly demonstrate” a cognizable interest in order to establish that he or she is a person “aggrieved” under Chapter 40A, § 17.  The Court distinguished this case from those where standing is derived from an impact to interests -- such as view or aesthetics -- identified in a bylaw that otherwise would not be cognizable injuries under zoning regulations.  While a zoning bylaw may create and define additional protected interests such as view, individual appellants still must bring themselves within the legal scope of that protection by presenting credible evidence of individual injury.  Likewise, in this case, the abutters bore the burden of substantiating their claims of the potential threat to the quality of their drinking water in order to fall within the scope of that legal interest.  Because they did not present any such evidence, the SJC affirmed the dismissal of their claim.

For further information, contact Brian C. Levey at blevey@bdlaw.com or Krista L. Hawley at khawley@bdlaw.com.