by Adam Sherwin
The Supreme Judicial Court issued its decision in Murchison v. Sherborn Zoning Board of Appeals, 485 Mass. 209 (2020), last year, concerning the test of standing for a G.L. c. 40A, § 17, zoning appeal. This decision, which came after an application for Further Appellate Review (“FAR”) of a published Appeals Court decision, was closely followed by the Massachusetts real estate community. The prior Appeals Court decision–which could be seen as watering down the test for standing–left many real estate professionals concerned that the floodgates would open for zoning appeals.
Murchison is one of the few, if only, times that the Supreme Judicial Court (“SJC”) issued an order affirming the trial court decision the day after oral argument, with a written decision coming some months later. Such a move underscores the high stakes of this decision.
The SJC’s decision in Murchison reaffirms an important principle for establishing standing to pursue a zoning appeal: One cannot appeal simply because they claim a zoning violation has occurred. Rather, a G.L. c. 40A, § 17, appeal requires such a claimant to show particularized harm from the zoning violation.
Background on Chapter 40A
Chapter 40A allows any person “aggrieved” by a zoning decision to appeal the matter through a civil action, which most commonly is filed in Superior Court or Land Court (but can also be filed in Housing Court or District Court).
Judicial review under chapter 40A is a “hybrid” between a trial and an appellate case. Like a trial matter, such a case requires a court to find facts de novo, without deference to the local board hearing. For this reason, it is common in a G.L. c. 40A, § 17, case to have witnesses, exhibits, and other evidence that was never presented at the initial zoning hearing. Following such factfinding, however, a court must give deference to the zoning board’s decision, and uphold it unless the decision is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.
The text of G.L. c. 40A, § 17, expressly addresses standing by stating that only a “party aggrieved” from a zoning decision may pursue an appeal. G.L. c. 40A, § 10, further creates a presumption of standing for any abutters located within three hundred feet of the property line of the petitioner seeking the zoning relief.
This presumption, however, can be rebutted by a defendant through a showing that (1) the alleged harm is not a protected interest under the zoning ordinance or (2) credible affirmative evidence exists to refute the presumption. If standing is rebutted, the plaintiff pursuing the zoning appeal bears the burden of showing aggrievement, with the party who received the zoning relief bearing the burden of showing that is entitled to such approval.
G.L. c. 40A, § 17, is largely silent as to what specific harms may constitute aggrievement. The caselaw is clear that this term is not meant to be narrowly construed, and intended to a flexible standard. Aggrievement, however, must be based on a private interest, not one affecting the public as a whole. Common grounds for standing in G.L. c. 40A, § 17, appeals include increased density, loss of privacy, and traffic concerns.
The plaintiffs in Murchison, homeowners in Sherborn, challenged a decision of the local zoning officer to grant a foundation permit for a single-family residential home across the street from their property. They argued that this home lacked the necessary minimum lot width for such a permit.
The plaintiffs filed a claim with the Town of Sherborn’s Zoning Board of Appeals, seeking review of the zoning officer’s decision–a required step for anyone challenging a local zoning decision. After the ZBA upheld the zoning officer’s decision, the plaintiffs filed an appeal in the Land Court pursuant to G.L. c. 40A, § 17.
Because the plaintiffs were abutters to their neighbor’s property, they enjoyed the rebuttable presumption of standing under G.L. c. 40A, § 11. Following a trial, however, the Land Court ruled that the defendants had rebutted this presumption, largely through expert testimony, and that the plaintiffs were not aggrieved by the ZBA’s decision.
On the merits, Land Court found that the alleged harm to the plaintiffs was de minimis. A key factor for this decision was that the plaintiffs’ home was across the street from proposed development, which rendered the plaintiffs’ concerns about lighting, traffic, and noise applicable to the community as a whole, rather than particularly to themselves. The plaintiffs appealed.
Appeals Court Decision
The Appeals Court, in a published decision, reversed the Land Court decision. 96 Mass. App. Ct. 158 (2019). The Appeals Court noted that the minimum lot width requirement was a zoning ordinance aimed at preventing overcrowding. Because of this, the Appeals Court reasoned, any increase in density was, on its own, enough to prove aggrievement.
The Appeals Court reasoned that determining one’s “harm” for a G.L. c. 40A, § 17, appeal comes directly from the applicable zoning ordinance:
There is no platonic ideal of overcrowding against which the plaintiffs’ claim is to be measured. Although the distance between the houses might not amount to overcrowding in an urban area, absent some constitutional concern, which the defendants do not argue exists in this case, cities and towns are free to make legislative judgments about what level of density constitutes harm in various zoning districts and to codify those judgments in bylaws. It does not matter whether we, or a trial judge, or the defendants, or their counsel, would consider the district “overcrowded.” What matters is what the town has determined.
The Appeals Court rejected the argument that the Murchison plaintiffs needed to do anything further to show particularized harm. This was in contrast to the Land Court decision and prior caselaw, which required such plaintiffs to do more than simply note that a zoning violation occurred. The Supreme Judicial Court then granted an application for FAR.
The SJC reversed the Appeals Court and upheld the Land Court’s decision that the plaintiffs lacked standing for a zoning appeal.
In doing, the SJC reaffirmed a central tenet for determining one’s standing for a G.L. c. 40A, § 17, appeal: “establishing standing requires a plaintiff to do more than merely allege a zoning violation.” 485 Mass. at 214.
As the SJC noted, the Murchison plaintiffs needed to demonstrate that they themselves would be impacted by the zoning relief, such as a showing that the development interfered with a view, reduced light or air, or interfered with their privacy.
While the Appeals Court was willing to determine standing mostly based upon a local municipality’s zoning ordinance alone, the Supreme Judicial Court clarified that a failure to comply with zoning, on its own, does not establish aggrievement.
Implications of Murchison
Murchison did not chart a new course for determining standing in a G.L. c. 40A, § 17, appeal. Rather, Murchison largely reaffirmed prior caselaw on standing, by emphasizing the importance of showing one’s individual harm as grounds for aggrievement.
Murchison, however, does reemphasize the tension in resolving such inquiries. Everyone involved in a real estate dispute is familiar with the old adage that “all property is unique.” Consequently, what one property owner considers as an important protection from a zoning ordinance may not be the same as another. In other words, while Land Court might deem the Murchison plaintiffs’ concerns about their neighbor’s minimum lot width to be de minimis, such a determination is not always a clean-cut answer.
The Appeals Court offered the simplest solution to this type of question: Let each municipality’s zoning ordinance make this call. But affording standing to nearly any party alleging a zoning violation would seemingly eliminate “aggrievement” from G.L. c. 40A, § 17.
Therefore, determining whether one’s harm is more than de minimis will remain a continued source of contention for future zoning appeals. Those pursuing zoning appeals must be mindful that a determination of standing is a question of fact, and careful thought must be given to the evidence necessary to prove such a matter.
Murchison also reaffirms that, in Massachusetts, zoning decisions are intended to be local. Because a zoning appeal under G.L. c. 40A, § 17, requires a showing of harm, many zoning decisions will not (and, indeed, cannot) be reviewed in court, for want of a party with standing to challenge the decision. This means that, for many zoning matters, local board of appeals or special permit granting authorities will continue to have the final say on many land use decisions.
Adam Sherwin is a solo practitioner concentrating in real estate litigation. He represents property owners, landlords, and tenants with a wide array of real estate matters, including boundary disputes, zoning appeals, contract disputes, foreclosure law, and landlord-tenant matters.