Mass. Appeals Court Ventures Onto High Wire of Zoning Standing Doctrine, Answers Vexing Question

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It’s about time!  Not since the notable 1961 adverse possession case Kershaw v. Zecchini have real estate litigators had an important decision inspired by circus performers.

In its recent decision in Murrow v. ESH Circus Arts, LLC, the Appeals Court answers a question that concurring Justice Peter J. Rubin notes “has vexed the judges of the trial court, who have reached different conclusions about it.”  In zoning appeals under M.G.L. c. 40A (the Zoning Act), plaintiffs may have the benefit of a rebuttable presumption that they are “persons aggrieved” – meaning they have standing to appeal.  This judicially-created presumption, which originated in the 1957 case Marotta v. Board of Appeals of Revere, is conferred on “parties in interest” as described in Section 11 of the Zoning Act.  Section 11 defines “parties in interest” as:

the petitioner [i.e., the applicant for zoning relief], abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list.

In Murrow, the defendant ESH Circus Arts, LLC applied to modify a previously-issued special permit so ESH could expand its for-profit circus school in Somerville, Massachusetts.  The defendant Somerville Zoning Board of Appeals granted the modification and ESH’s neighbor Claudia Murrow appealed.

Murrow first argued that, though she’s not an “abutter to an abutter,” she’s nevertheless entitled to the presumption of standing because her property is within 300 feet of ESH’s property.  The Appeals Court quickly disposed of this argument, pointing out that “within three hundred feet” modifies “abutters to the abutters” and therefore “does not create a standalone category of parties in interest.”

The “vexing question” arose from Murrow’s second argument.  Section 11 of the Zoning Act provides that local tax assessors “shall certify to the . . . special permit granting authority the names and addresses of parties in interest[,]” and that this list “shall be conclusive for all purposes.”  Murrow argued that because she was on the assessor’s list and received notice of the public hearing, she was entitled to the presumption of standing since that list is conclusive for all purposes.  Hardly a clownish argument, but the Appeals Court didn’t buy it.  The court observed that Murrow’s position “would nullify the clear and unambiguous definition” of “parties in interest” and ignore much of the Commonwealth’s standing jurisprudence.  The court held that the assessor’s certification “is conclusive as to who owns what parcel for the purposes of the notice requirement; it is not an unassailable list of parties with standing.”

The Murrow decision includes a thoughtful concurrence by Justice Rubin, who delves into the legislative history of Section 11 and the origins of the “parties in interest” concept.  He observes that this category was created as part of the 1975 overhaul of the Zoning Act, and he faults subsequent appellate decisions holding that parties who receive notice of a proceeding (because they are thought to be “parties in interest”) are ipso facto “persons aggrieved” with standing to pursue a zoning appeal.  As Justice Rubin explains, the presumption of standing goes only to parties who actually meet the definition of “parties in interest,” and courts must make this determination independently, i.e., without regard to whether a party does or does not appear on the assessor’s list.

Bottom line:  being on the assessor’s certified list of “parties in interest” doesn’t automatically confer a presumption of standing.  Zoning boards and recipients of zoning relief should take an independent look at whether would-be appellants meet the statutory definition of “parties in interest.”