Zoning – Standing – Comprehensive permit

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Where plaintiffs filed suit challenging the defendant zoning board’s issuance of a comprehensive permit to a codefendant developer, an order awarding the defendants summary judgment should be reversed because the plaintiffs’ presumptive standing was not successfully challenged by the defendants.

Standing issue

“Avalon at St. Clare, Inc., was issued a comprehensive permit by the zoning board of appeals of Andover under G.L.c. 40B, Sects. 20-23, to construct a multi-unit building on a site in Andover. The plaintiffs, who are abutters, appealed the decision of the board to the Superior Court by a complaint under G.L.c. 40A, Sect. 17. On a motion for summary judgment the court dismissed the complaint on the grounds that the plaintiffs lacked standing. We hold that (1) at least some of the bases asserted by the plaintiffs for standing were legally cognizable and (2) the plaintiffs’ presumptive standing arising from their status as abutters was not successfully challenged by the evidence submitted by Avalon in support of its motion for summary judgment. The actual merits of the plaintiffs’ challenge to the issuance of the comprehensive permit were not decided below and thus are not reviewed herein. …
“… Diminution in real estate values is an injury that is a tangible and particularized injury to a private property or legal interest protected by zoning law. … This is a valid basis for a claim of standing. … In this case, the plaintiffs had no burden to support their claim of diminution of value, once having identified it, because the defendants did not offer any evidence warranting a conclusion that the plaintiffs’ property would not be diminished in value.
“Instead of supplying such evidence, Avalon cited various responses made by the plaintiffs during discovery, which revealed that (apart from the affidavits that had been struck) they had no evidence that would warrant a finding that the development would have an adverse impact on their property values. This lack of evidence was characterized as ‘evidence’ in the arguments of Avalon and the decision of the judge.
“Avalon relies on Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 (1993), to suggest that, on summary judgment, it is sufficient merely to dispute the plaintiffs’ claim of standing and to show that the plaintiffs have no evidence to support their position. …
“We can no longer say, as we did in Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. at 621, that the filing of a motion for summary judgment constitutes a ‘challenge’ sufficient to make the statutory presumption recede, and requires the plaintiffs to come forward with ‘specific facts’ to support their assertion of status as aggrieved persons, as would be required under Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).”
The full text of this decision can be found on Lawyers Weekly’s website, malwdev.wpengine.com.
Standerwick, et al. v. Zoning Board of Appeals of Andover, et al. (Lawyers Weekly No. 11-160-05) (14 pages) (Doerfer, J.) (Appeals Court) Case heard by Whitehead, J., on a motion for summary judgment. Andrew A. Caffrey Jr. for the plaintiffs; Kevin P. O’Flaherty for Avalon at St. Clare, Inc.; Thomas J. Urbelis, for Zoning Board of Appeals of Andover, was present but did not argue (Docket No. 04-P-17) (Aug. 26, 2005).