When Density Can Support Standing for Appeals of Land Use Decisions
The Appeals court, in Murchison v. Zoning Bd. of Appeals of Sherborn, recently clarified the circumstances under which a plaintiff will be successful in relying on an increase in density as the basis for his or her standing to challenge the decision of a local zoning board. As a preliminary matter, the harm alleged by a plaintiff-abutter in a zoning appeal must be one that the Zoning Actor the local zoning bylaw is intended to protect. In Murchison, the Appeals Court reiterated that the prevention of overcrowding is an interest protected by the Zoning Act, and further stated that dimensional requirements in municipal zoning ordinances and bylaws serve to protect neighbors from overcrowding.
Plaintiffs, when challenged, must also be able to demonstrate that their alleged harm is particularized to them and not one applicable to the general community. In considering this, the Appeals Court rejected an argument that the plaintiff’s neighborhood must already violate the density provisions of the local ordinance or bylaw for the plaintiff to have standing to challenge a proposed development that will increase the overcrowding:
There is no reason the first neighbor to violate a density regulation should have a free bite at the apple if that violation causes particularized harm to another property owner. The question for standing purposes is whether there is a particularized non-de minimis harm resulting from the unlawful overcrowding.
With respect to the particularity of the alleged harm, the “harm to a property from having a house across the street closer to his or her own than is permitted by the density-protective bylaws is different in kind from that suffered in an undifferentiated fashion by all the residents of the neighborhood.” The court was careful to clarify, however, that standing is not derived from the mere fact of the alleged bylaw violation but from the particular way in which the violation impacts the plaintiff in question.
The plaintiff lived across the street from an undeveloped lot. The defendant received a foundation permit to build a single-family home. The plaintiff alleged that the lot did not meet the minimum width requirements at the requisite points, and that the permit should therefore not have been granted. Without reaching the factual dispute, the Land Court dismissed the case for lack of standing. In part, the Land Court judge found no particularized harm because the alleged violations affected only the placement of the house on the lot. The density, therefore, would be the same. While the Appeals Court questioned whether this conclusion was correct, it concluded that where a house is placed on a lot can result in particularized harm, given that it could result in a house closer to the plaintiff’s house than would otherwise result.