Court Reaffirms Standard for Injury Sufficient to Maintain Standing to Challenge Zoning Permit Modification
The Massachusetts Appeals Court reaffirmed that the injury sufficient to maintain standing to challenge the modification of a special permit turns on the harm stemming from the original project, not the incremental harm between pre- and postmodification changes. In Aiello v. Planning Board of Braintree, 91 Mass. App. Ct. 354 (2017), the Appeals Court reversed the Land Court’s decision that the plaintiff lacked standing because he could not show such incremental harm and remanded the approval of a special permit for an enhanced commercial use to the local planning board for reconsideration.
The Abutting Properties
The plaintiff owns 15 acres of residentially zoned property in Braintree, located directly north of the commercially zoned abutting land. The plaintiff’s property, consisting of several parcels, contains a number of uses including single and multifamily residential units, nonconforming catering business and a “semi-agricultural use,” a goat pasture. The plaintiff’s property is at a higher elevation than the adjacent property and has a clear view of the neighboring land’s structure and portions of its parking area.
The abutting property, a nine-acre parcel in a commercial district, is improved with a long commercial building (the “Locus”). Pavement covers most of the northern portions of the Locus. For many years, the northern side of the building has been used for parking with vehicular traffic running behind the row of cars along the building. Seventy-two feet separate the building from the common boundary with the plaintiff’s land. Twenty-eight feet of the commercial building fall within the 100-foot buffer zone between commercial and residential zones required by Braintree's zoning by-law. Under the bylaw, the 100-foot buffer should only be used for access and passive recreation.
A special permit may be granted modifying the buffer zone and its landscaping requirements based on consideration of “(a) [p]roximity to a residential development, (b) [t]opography of the site and the adjacent property, (c) [n]ature of the use and/or activity on the site, (d) [l]and use of adjacent property, … [and] (f) [p]otential for impact of any nuisance activities such as noise, light, or glare.”
The Locus benefits from a 1994 special permit that allowed a building addition subject to several conditions including restricting the use of the addition to storage only, prohibiting permanent outdoor storage and requiring appropriate actions to minimize noise that may disrupt the abutting residential neighborhood. After the 1994 special permit was granted, the northern parking lot accommodated numerous employee vehicles and received deliveries of raw materials. Trucks also entered and exited the northern area of the Locus to reclaim waste and materials used as part of the manufacturing process and gain access to a rear loading area. However, the plaintiff registered no complaints.
Commercial Use Transformed
After a contractor purchased the Locus in 2003, the use of the northern parking area was transformed into a contractor’s yard with the storage of vehicles, materials, and equipment. The commercial building was repurposed for use as a nonresidential garage for the repair of vehicles and equipment. Also, a bus company rented space and conducted repairs in and outside the building. The plaintiff saw and heard the various industrial vehicles and materials including backhoes, buckets, bulldozers, excavators, construction equipment and their back-up alarms and the dropping of metal plates from his property. The visual impact, noise, and fumes caused him to complain to authorities on multiple occasions.
In 2008, the contractor sought to modify the buffer zone special permit by removing restrictive conditions and seeking approval of its unlawful uses – improving the parking area to accommodate over-sized vehicles and trailers, allowing exterior permanent storage of equipment and supplies, and use of the building for maintenance and repair of construction vehicles. In a 2009 decision, the planning board allowed the requested modifications in large part relying on the fact that the proposed uses were allowed by right in the commercial district. The board also concluded that the potential for any nuisance was minimal.
Land Court Upholds Board
On appeal, the Land Court ruled that the plaintiff lacked standing. The Judge reasoned that the noise and odors emanating from the Locus were the result of uses allowed by right or specifically allowed under the 1994 special permit. Significantly, the Court concluded that the plaintiff was “unable to credibly distinguish between harm that flows from the changes allowed by the 2009 modification and harm that flows from uses allowed prior to… [the] issuance [of the 1994 special permit].” Despite the conclusion that the plaintiff lacked standing, the Court nonetheless reached the merits and concluded that if the plaintiff had standing, it would have remanded for further consideration of the proposed screening while otherwise affirming the decision on the merits.
Lower Court Applies Erroneous Standard
Restating the well-established law that “the right or interest asserted by a plaintiff claiming aggrievement must be one that the Zoning Act is intended to protect, either explicitly or implicitly, ” the Appeals Court found that the regulatory scheme makes it clear that visual impact is an interest protected by the by-law. The Court further reiterated that, “where an abutter has alleged harm to an interest protected by the zoning laws, a defendant can rebut the presumption of standing by coming forward with credible affirmative evidence that refutes the presumption,” for example, with expert evidence “establishing that an abutter’s allegations of harm are unfounded or de minimis.” 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 702 (2012).
The Appeals Court disagreed with the Land Court’s determination that the plaintiff had successfully rebutted the defendant’s presumption of standing. The lower court had found that the plaintiff “failed to overcome [the defendant’s] challenge to his allegation of harm because the visual impact of the 2009 modification, compared to premodification impact, is de minimis.” Overruling that conclusion, the Appeals Court held that the “analysis of whether the board's decision will have only a de minimis impact on [the plaintiff’s ] property is not limited to harm caused by the modifications that exceeded the over-all harm stemming from the project as originally approved in 1994.” The lower court’s “focus on the incremental harm between the use after the 1994 special permit and the use after removal of the conditions was misplaced.” The Court found such a requirement is inconsistent with the principle that the term '“person aggrieved” should not be construed narrowly.
Citing the Land Court’s findings, the Appeals Court noted that the plaintiff would be able to see the equipment stored and oversized vehicles parked outside from many points on his property and that the fence required by the special permit was inadequate to buffer the view. This alone, the Court ruled, satisfied the plaintiff’s burden to show that the zoning relief granted adversely affected him directly and that his harm was more than de minimis. The lower court’s findings also supported standing on the basis of noise from the Locus. In sum, the finding that the plaintiff lacked standing was in error, the judgment was vacated, and the matter remanded to for the entry of an order requiring the board to reconsider the allowance of 2008 application for a special permit.
Beveridge & Diamond’s Boston Office represents developers and owners of residential, commercial and industrial projects in land use and environmental permitting and litigation throughout Massachusetts. For more information please contact Brian Levey.