Massachusetts Appeals Court Rules Abutters Have Standing to Appeal Based on Density Impacts

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, 2009

In its most recent ruling on whether abutters have standing to appeal a zoning decision under G.L. c. 40A, §  17, the Massachusetts Appeals Court concluded that the crowding of an abutter’s residential property by violation of the density provisions of the zoning bylaw generally will constitute harm sufficient to establish standing.  In Dwyer v. Gallo, 73 Mass. App. Ct. 292 (2008), the Court reversed a ruling of the lower court and concluded that abutters of two undersized lots proposed to be developed with single-family homes had standing to appeal the grant of two special permits permitting such development.

The applicant in Dwyer secured two special permits to allow him to construct two homes on adjacent, undersized lots and two abutters appealed the decision, asserting that the two lots had merged for zoning purposes.  On review, the Superior Court concluded that the abutters did not have standing to pursue their appeal.  Applying the familiar rubric of Standerwick v. Zoning Board of Appeals, 447 Mass. 20 (2006), the Court found that while the abutters enjoyed a presumption that they were persons “aggrieved” for the purposes of establishing standing, the applicant had rebutted that presumption with evidence on issues such as impact to the abutters’ property value.  The lower court found that the abutters were unable to establish standing without the benefit of that presumption.

The Appeals Court reversed the decision on standing, concluding that the abutters had established they were persons aggrieved based on the incremental increase in density posed by the construction of the two homes in close proximity to their own.  The parties live in a neighborhood that is more dense than allowed by current zoning, and courts have recognized an abutter’s legal interest in preventing further construction in that context.  Moreover, the bylaw specifically included in its purposes the prevention of overcrowding of land and undue concentration of population.  As a result, the Appeals Court concluded the abutters’ concern regarding density therefore was a legal interest protected by the bylaw and a proper basis for standing.

The Court noted that such a concern was not a general civic interest in the enforcement of the bylaw – which is insufficient to establish standing – but specific to the abutters based on their proximity to the proposed construction and resulting impacts such as loss of privacy.  The Court concluded that density concerns “are directly protected by the zoning scheme at issue, and the articulated effects on the Dwyers’ privacy and use and enjoyment of their property constitute sufficient direct harm to confer standing on them.”

Having established standing, the Court found that the two lots at issue had in fact merged because they had been held in common ownership and therefore the special permits were granted improperly.  The lots were created through a 1937 subdivision plan, which predated the 1956 adoption of the local zoning bylaw.  The lots had been held in common ownership since at least 1945.  The Court found there was no clear language in the bylaw indicating an intent to eliminate the application of the merger doctrine to lots that were created prior to the adoption of the zoning bylaw.  Therefore, the two undersized lots were considered merged for zoning purposes and the special permits.

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