Our readers may remember that, in our October 2019 newsletter, we discussed the Appeals Court’s opinion in Murchison v. Zoning Bd. of Appeals of Sherborn. In that case, the Land Court had dismissed the appeal of a foundation permit, brought by the owners of an abutting parcel, for lack of standing. The plaintiffs had unsuccessfully argued to the Land Court that the property in question did not comply with the Town’s minimum lot width requirement, and that this violation presented a harm to them as abutters, based on density and overcrowding, that was sufficient to confer standing to bring an appeal under M.G.L. c.40A, §17. The Appeals Court agreed with the plaintiffs and reversed the Land Court, ruling that noncompliance with a dimensional zoning requirement was indeed a sufficient harm to establish their standing.
In an unusual step, however, the Supreme Judicial Court took up a further appeal and, shortly after its hearing in March, issued an order reversing the Appeals Court and affirming the Land Court’s judgment with a written opinion to follow. The SJC issued its written decision on July 16, 2020.
The plaintiffs again argued before the SJC that they had standing to challenge the issuance of the building permit because the dimensional requirement protects against neighborhood overcrowding. The SJC was not persuaded, however, agreeing with the Land Court that “there is nothing to demonstrate that the purpose of Sherborn’s dimensional lot width zoning requirement is to control density or overcrowding generally, or to protect an abutter’s interests in particular.” In doing so, the Court indicated that setback and lot size requirements are more directly related to density than lot width dimensions. The Court further found that “establishing standing requires a plaintiff to do more than allege a zoning violation” and that the abutter had not demonstrated a particularized harm, different from the general concerns shared by the rest of the neighborhood.
So when is a density-related harm particular to an abutter? The SJC reiterated previously recognized density-related injuries, such as loss of a view, loss of privacy, and significant reduction in light or air. But it emphasized that speculative or de minimis harm does not suffice to support standing.
The discussion of the alleged harm from stormwater runoff is of particular interest in this regard: The two parties had introduced expert engineering testimony regarding whether the stormwater runoff from defendants’ higher elevated lot would cause damage to the plaintiffs’ lower elevated lot once the defendants’ lot was developed. The plaintiffs’ expert assessed stormwater runoff of the lot in question in its natural state and developed state. The defendants’ expert assessed stormwater runoff of the lot in three states – natural, cleared and developed. Since the lot was already partially cleared, and the plaintiffs’ expert did not rebut the defendants’ expert’s opinion that the runoff in a developed state would be less than that in the lot’s partially cleared state, the Land Court found the plaintiff’s expert opinion to be insufficient to establish the plaintiffs’ standing. The SJC found no error in this conclusion.