Although beauty, and the appropriateness of a projected construction project, is in the eyes of the beholder, standing to challenge a zoning board of appeal approval of that project necessarily needs a more objective standard. The procedural and substantive burdens for establishing standing were recently explored by the Appeals Court in Butler v. City of Waltham, 63 Mass. App. Ct. 435, 827 N.E. 2d 216 (2005).
The owner of the subject commercial project in Waltham needed and was granted special permits from the Waltham City Council. The project was located in one of the "islands" in the cloverleaf created at the intersection of a local roadway and Route 128. The City Council, as a condition of its permits becoming effective, required the owners to obtain an additional permit and variances from the Waltham Zoning Board of Appeals (ZBA). That zoning relief was applied for, and the ZBA granted the additional permit and variances. Mr. and Mrs. Butler, who owned a home outside the area that would have given them presumptive standing to challenge the ZBA decision, filed an appeal to the Land Court. They made several claims of harm, including a claim that the traffic light installations that the ZBA insisted upon, as a condition of its approval of the requested zoning relief, would result in even worse traffic conditions than presently existed on this main thoroughfare intersecting Route 128.
Land Court proceedings
In the Land Court, the developer took depositions of the plaintiffs and their traffic expert. The developer submitted an affidavit of its own traffic expert, portions of the transcript of the deposition of the plaintiffs' expert, and sought summary judgment based on the plaintiffs' lack of standing.1 The Land Court allowed the developer's motion for summary judgment as to all of the grounds relied upon by the plaintiffs, except for the claim that the projected changes would result in increased traffic queues in front of their home. In denying judgment on that sole issue, Judge Kilborn cited Kourouvacilis v. General Motors Corp., 410 Mass. 706 (1991), indicating that the developer had failed to demonstrate that the plaintiffs had no reasonable expectation of proving an essential element of their case.2 However, foreshadowing the ultimate disposition, he suggested that the parties may want to bifurcate the trial, and have a hearing first to determine if standing existed.
The parties agreed to the court's suggestion, and a hearing was conducted solely to determine standing. Both sides offered testimony on the expected traffic impact of the project. At that hearing, Judge Kilborn opined from the bench that the plaintiffs would have to convince him by a preponderance of the evidence that there would be a negative traffic impact. He ultimately found that the plaintiffs had not convinced him that their traffic problems would be made worse by the proposed traffic signals, and he dismissed the suit based upon the plaintiffs' lack of standing. The plaintiffs appealed.
The Appeals Court reviewed recent caselaw, including Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass 719 (1996), the latest major clarification issued by the Supreme Judicial Court of the substantive burden for establishing standing.
The SJC in Marashlian expanded upon some of the substantive burdens for establishing standing.3 But it also stated, without further explanation, that "the plaintiff must put forth credible evidence to substantiate his allegations. [It is i]n this context [that] standing [is] essentially a question of fact for the trial judge." Marashlian, supra, at 721.
It is for this aspect of the mixed procedural/substantive standard that Justice McCue proceeds in the Butler case to offer a roadmap for counsel and the trial court. To establish standing, the burden on a plaintiff is to put forth "credible evidence" to specifically support the claimed harm, that is, evidence that it is reasonable to rely upon, and if believed, would support the conclusion that a particularized harm will occur to the plaintiff, different from that which will affect the public at large. The existence of countervailing evidence of a lack of harm (which may be more convincing if the two opposing views were weighed against each other) does not enter into the determination of standing, unless that evidence sufficiently undermines the reliability of the plaintiff's evidence, i.e., the evidence offered by the plaintiff should not be accepted as "of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Butler, supra, at 441.
The Appeals Court ruled that the Land Court had applied the wrong burden by requiring the plaintiffs to convince him by a preponderance of the evidence that there would be a discernable individualized harm from the project, as approved. However, the court went on to hold that notwithstanding that error, the evidence proffered by the plaintiffs was insufficient as a matter of law to pass the credible evidence threshold needed for standing. The conclusory statement by the plaintiffs' traffic expert that traffic would be "worse" after the project was built with the additional traffic signals was not supported by his own actual calculations of the expected length of the lines of traffic. Plugging in the specific calculations of the expected length of the lines of traffic that would start from the new traffic signal resulted in shorter expected queue lengths than the plaintiffs had testified currently exist.
The Appeals Court rejected the suggestion that "common sense" would dictate that more vehicles coming to and going from the existing parcels would create a greater traffic backup, since the addition of the traffic lights could very well diminish the length of the backups and add order to the free-for-all that currently existed at the intersections. In sum, there was no substitute for a scientifically valid basis for an opinion that harm would be generated.
1. A Plaintiff with Presumptive Standing
This opinion did not address the application of the above analysis when there is a plaintiff (unlike the Butler plaintiffs) who enjoys a rebuttable presumption of standing, as provided in G.L.c. 40A, ß11. However, shortly after the Butler decision, the Appeals Court dealt with just that scenario in Standerwick v. Zoning Board of Appeals, 64 Mass. App. Ct. 337, 833 N.E.2d 181 (2005).
In an appeal from a zoning board decision in which a plaintiff has presumptive standing, the Standerwick decision describes a two-stage process to determine a challenge to standing. First, a plaintiff must articulate a cognizable injury,4 that is, an injury to an interest that the zoning law recognizes is protected. However, a plaintiff need not present evidence to support that allegation. A plaintiff must simply state a claim upon which standing can be based. Standerwick, supra, 342 at note 7.
Once a plaintiff satisfies that hurdle, the defendant must come forward with evidence to rebut standing that would be sufficient to withstand a "directed verdict." That evidence must be sufficient, if believed, to warrant a finding of no harm to the plaintiff, or no harm different from that which would be suffered by the general public. Standerwick, supra, at 341. If the defendant carries that burden, then the presumption disappears and the Butler criteria apply to this plaintiff's burden to establish standing.
For judicial economy, these questions will most likely be addressed in a pretrial motion to dismiss, since standing is a jurisdictional prerequisite, or summary judgment (as occurred in Standerwick) at which evidence will undoubtedly be proffered. There is caselaw that supports allowing discovery before this factually based jurisdictional issue is determined, but it is discretionary with the trial court.
2. Interconnected Administrative Zoning Decisions
The existence of permits issued by one permitting authority, which were conditioned upon obtaining relief from another permitting authority, added a problematic timing wrinkle to the Butler litigation. Permits ordinarily must be sought and implemented within a relatively short period of time after zoning relief is granted (i.e. one year in this case) and the appeals to the Land Court, and thereafter to the Appeals Court, resulted in an arguable technical expiration of the time for implementing the Waltham City Council granted permission. As a result, the developer brought its own Land Court action and obtained a declaration from the Land Court that the time for implementing the City Council relief was tolled while the appeals of the Zoning Board of Appeals permit/variances were being prosecuted.
Because of the possible shift over time in membership on City Councils (or boards), maintaining the viability of hard fought zoning relief is an important consideration for counsel to keep in mind when there are layers of approvals to be obtained.
1. Technically, since standing is a jurisdictional issue, the motion could also have been denominated as a motion to dismiss.[back]
2. Kourouvacilis, supra, holds that the party which does not have the burden of persuasion can obtain summary judgment if it can establish that the other party will not likely be able to carry its burden at the trial. The Butlers' expert had been deposed extensively as to the basis of his opinion. The plaintiffs submitted his affidavit in opposition to the motion for summary judgment. Although there were deficiencies in his methodology, and his underlying calculations ultimately proved fatal to his generalized conclusions of harm, the trial court evidently felt at this stage of the proceedings that the developer had failed to demonstrate that the plaintiffs could not cure the deficiency. As can be seen from the discussion in Butler, that is a different rationale for denial of a motion to dismiss based upon a lack of standing than an affirmative finding that the plaintiffs had proffered credible evidence that was accepted by the court as fulfilling the plaintiffs' burden.[back]
3. The Marashlian opinion issued on further appellate review, and reversed an Appeals Court decision that ruled the plaintiffs in that action lacked standing, contrary to the Superior Court's judgment. The SJC discussed the reliance by the Appeals Court on the apparent rule enunciated in Barvenik v. Alderman of Newton, 33 Mass. App. Ct. 129, 597 N.E.2d 48 (1992), and carried forward in its progeny, that a plaintiff must show that the expected harm from the zoning relief that was granted exceeds the expected harm that would be generated if the project proceeded as of right. The SJC refused to accept that standard, and stated that the comparable harm between these two situations is only "a factor" in deciding standing, and it is not dispositive.[back]
4. The plaintiff must allege that he will suffer a harm different than that expected to befall the general public. Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129 at 131, n.7, 597 N.E.2d 48 (1992).[back]