SJC Confines Zoning Standing Analysis To Actual Proposed Use; Speculation As To Future Uses Is Irrelevant

Last week, the Massachusetts Supreme Judicial Court (SJC) reversed an Appeals Court panel in a strongly-worded decision concerning abutter standing to appeal a zoning decision, Stone v. Zoning Bd. of Appeals of Northborough (pdf).

The plaintiff abutters appealed a use variance that the Town of Northborough Zoning Board of Appeals granted to Cable Matters Inc. (Cable Matters) to build a warehouse on property in an industrial zoning district that’s also in a groundwater protection overlay district.  The Superior Court dismissed the plaintiffs’ appeal for lack of standing but the Appeals Court panel reversed, reasoning that the Superior Court judge should have considered impacts from “’the uses to which an ordinary 20,000 square foot warehouse’ might be put in the future.”

The SJC skewered the panel, noting that it “rested its decision on a ground unsupported by the summary judgment record that the plaintiffs had not advanced and neither side had addressed: namely, that Cable Matters’s proposed use of the warehouse was ‘unusually light,’ and, therefore, the Superior Court should have also considered ‘the uses to which an ordinary 20,000 square foot warehouse’ might be put in the future.”

The plaintiffs had not offered any credible evidence at summary judgment that the warehouse would cause them material harm. While they alleged classic abutter impacts like “headlight glare,” beeping from reversing trucks, and exhaust fumes, the plaintiffs admitted they were already impacted by nearby trucking and distribution businesses and warehouses operated by “a regional trucking company, FedEx, […] Amazon, a T-shirt business, a wholesale distributor of snowplows, and a medical supply company.” Still, the Appeals Court panel was inclined to give them another bite at the apple, sending the case back to the Superior Court to consider potential impacts from hypothetical future uses of the warehouse. But the SJC stepped in, granting further appellate review.

First, the SJC admonished the Appeals Court panel for considering future uses to which the warehouse might be put, because not only had the plaintiffs alleged no facts concerning future uses, they didn’t even argue “either to the board, the Superior Court, or the Appeals Court” that their standing was based on supposed future uses. The SJC reminded the panel that, on appeals from summary judgment, its review is confined to the evidence before the trial court.

Second, the SJC was puzzled by the panel’s reliance on Allegaert v. Harbor View Hotel Owner LLC, 100 Mass. App. Ct. 483 (2021), which  did not involve standing under M.G.L. c. 40A, § 17. Rather, it involved issues of defective notice and claim preclusion in the context of a zoning enforcement action. In the claim preclusion analysis, Allegaert (whose panel included two of the same judges as in Stone) considered whether an existing special permit allowing food and beverages to be served on a hotel pool deck included service at the bar as well. This change in use was central to whether the claim was precluded. The SJC observed that in an enforcement case, “the evolving use of a property will be relevant in determining whether the use remains within the provisions of the zoning regulations,” but noted, “Allegaert does not stand for the proposition that potential future uses that are different in nature or degree from the actual use proposed by a property owner must be considered to determine whether a plaintiff has standing to challenge the initial issuance of a special permit or variance.”

In Stone, the issue was simply a threshold question of the plaintiffs’ standing. Because the only issue was whether the plaintiffs proved they were aggrieved by the grant of a variance for Cable Matters’ warehouse “as proposed to, and approved by, the zoning board,” the SJC affirmed the Superior Court’s dismissal of the plaintiffs’ appeal for lack of standing.

One wonders how the Appeals Court panel was led so astray in this case. It’s disheartening that an unmeritorious appeal filed in September 2020, over which the Superior Court never had jurisdiction, managed to delay a permitted use for almost five years. Hopefully Stone will give the Appeals Court and our trial courts more motivation to dismiss such cases for lack of standing early, before the parties spend years and thousands of dollars on fruitless litigation.