Massachusetts Standing Laws and Zoning Appeals: Standing on Shaky Ground after Kenner V. Zoning Board of Appeals

By Lidington, Beth | Suffolk University Law Review, Spring 2013 | Go to article overview

Massachusetts Standing Laws and Zoning Appeals: Standing on Shaky Ground after Kenner V. Zoning Board of Appeals


Lidington, Beth, Suffolk University Law Review


[N]early all the residences are built along the water front of said bay, and facing east, commanding a beautiful view of said bay ... and its real estate derives almost its whole value from this fact, and from its commanding view of the waters of [the] sound, and the fact that cool breezes which habitually and daily blow ... over this sound, and thus reach the residences ... and [provide] relief from summer heat. (1)

I. INTRODUCTION

Zoning laws in the United States came into existence at the turn of the twentieth century and were deemed constitutional under state police power. (2) Since zoning's inception, states have delegated the bulk of zoning authority to local municipalities, and accordingly, this area of the law is quite diverse. (3) The manifold nature of zoning is strikingly evident at the judicial-review level, where courts grapple with upholding zoning's legal underpinnings, while at the same time maintaining deference to local decision-making. (4) The interplay between state and local authorities results in a body of law that can be, at times, contradictory and unpredictable. (5)

To have standing to oppose an act of a local zoning board, Massachusetts law requires a person to be "aggrieved"; however, courts' attempts to define aggrievement have yielded inconsistent results. (6) Recently, in Kenner v. Zoning Board of Appeals (7) the Massachusetts Supreme Judicial Court (SJC) attempted to clarify the standard, but only managed to further shroud standing laws in confusion and ambiguity. (8) In essence, the SJC raised the bar for threshold standing determinations, and in doing so, utilized vague and imprecise language in defining aggrievement. (9) In addition, the SJC created potential disruption in the well-settled area of the law of particularized harm. (10)

The SJC articulated its new standard against the backdrop of a common occurrence in Massachusetts: an abutter opposing a special permit granting a structural-height increase that will effectively block scenic views. (11) First determining that the local bylaws at issue do not protect view-based harms, the court went on to hold that the new standard for determining standing requires that "[t]he adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy." (12) In addition, the SJC erroneously asserted that in order to achieve standing, a party must not only show that the view-based harm is particularized and specific to her property, but also that the community is harmed as well. (13) Requiring a showing of community harm expressly contradicts the well-settled rule that a plaintiff must offer evidence of harm particular to her--not shared by the community. (14)

This Note will analyze standing laws in Massachusetts primarily through the lens of view-based harm. (15) Part II.A will include an analysis of basic standing principles within the context of zoning in Massachusetts. (16) Part II.B will analyze pre-Kenner standards for standing and their implication on Massachusetts standing jurisprudence. (17) Part II.C will explore Kenner and its impact on recent Massachusetts appellate decisions. (18) Part III.A will analyze the problems created by the Kenner decision, while clarifying the issue of particularized harm. (19) Finally, Part III.B will include a proposed standard that incorporates the courts' goals for standing, while providing a clear and consistent application. (20)

II. HISTORY

A. Standing Laws in Massachusetts: The Basics

Standing laws in Massachusetts are not derived from the state's constitution, but rather originate in practical judicial considerations and limitations. (21) While the fundamental aim of judicial review is ensuring full review of an individual's legal interests, this goal is balanced with the maximization of judicial efficiency. …

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