SJC Holds That Diminution of Property Values Does Not
Confer Standing to Challenge a Comprehensive Permit —
Decision Also Addresses Standing Under the Zoning Act

In a decision that will be lauded by the subsidized housing community, and developers in general, the Supreme Judicial Court (the “SJC”) has tossed out an abutter challenge to a comprehensive permit, ruling that a claim of diminution of property value does not confer standing to challenge a comprehensive permit issued pursuant to G.L. c. 40B, §§ 20-23 (the “Comprehensive Permit Statute”). [See Standerwick v. Zoning Bd. of Appeals of Andover, SJC-09635 (June 16, 2006).] In addition, the SJC clarified that, in order to overcome the presumption that abutters have standing to file any zoning appeal, a developer need only show that the abutter could point to no evidence of the basis of his or her claims during discovery.

In Standerwick, abutting land owners appealed a comprehensive permit, citing a litany of alleged adverse impacts from the project, but conceding that they had no concrete evidence to support a finding of any adverse impacts except for traffic and drainage. The Developer moved for summary judgment relying on affidavits of a traffic engineer and a civil engineer, who stated, respectively, that additional traffic could be safely absorbed by local roads and that the development would comply with state environmental rules regarding drainage. In opposition, the plaintiffs failed to submit expert affidavits to the contrary, but they did file affidavits of two real estate professionals who claimed that the development would diminish the value of their property. In addition, the abutters argued that the Developer had failed to rebut their claim of standing based on other impacts such as increased crime and vandalism, even though the abutters had admitted in their depositions that they had no real reason to expect such impacts.

The Superior Court allowed the Developer's motion for summary judgment. However, in a decision that raised eyebrows in the development community, the Appeals Court reversed, holding that diminution in real estate values is an acceptable basis for a challenge to a comprehensive permit, and that the Developer had not adequately challenged the abutters’ presumptive standing simply by pointing to the abutters’ admission that they could not describe any impacts from the proposed construction. The SJC disagreed on both points and reinstated the original dismissal.

It has long been the law that a claim of diminution of property values can be a sufficient basis for abutter standing under the Zoning Act. Because the Comprehensive Permit Statute incorporates the Zoning Act in part, the Appeals Court had concluded that a loss in property values can be a basis for standing to challenge a comprehensive permit as well. Not so, says the SJC. Lost property values can support standing under the Zoning Act only when the loss results from an injury related to an interest protected by the applicable zoning scheme. For example, when a board grants a variance allowing construction on an undersized lot, an abutter whose property value diminishes can appeal the variance, because the minimum lot size provision in the zoning scheme was designed to protect the abutter against his neighborhood being too densely developed.

But the preservation of real estate values of property abutting an affordable housing development is clearly not a concern that the G.L. c. 40B regulatory scheme is intended to protect. The Comprehensive Permit Statute was designed to override local opposition to low income housing. The Statute reflects the Legislature’s judgment that a crisis in low and moderate income housing demands a legislative scheme that requires the local zoning scheme of a town to yield to the regional need for the construction of such housing. The clear intent of the Legislature was to promote affordable housing by minimizing lengthy and expensive delays occasioned by court battles commenced by those seeking to exclude affordable housing from their own neighborhoods. Accordingly, the SJC had “no hesitation in concluding that granting standing to challenge the issuance of a comprehensive permit under G.L. c. 40B, § 21, to those who claim a diminution in the value of their property frustrates the intent of the Legislature.”

In its second and potentially even more far-reaching holding, the Standerwick decision also addresses the effect of an abutter’s rebuttable presumption that he or she is a “person aggrieved” for the purposes of the Comprehensive Permit Statute or the Zoning Act. Through unchallenged affidavits of its experts, the Developer in Standerwick established that the plaintiff-abutters’ claims of traffic and drainage problems were unfounded. The Appeals Court had ruled that this was not enough to warrant dismissal of the case, because the Developer’s only evidence that there would not be an increase in crime or vandalism was that the abutters had been unable to explain why there would be such impacts. The SJC, though, found that the Developer was not required to support its motion for summary judgment with affidavits on each of the plaintiffs’ remaining claimed sources of standing; the Developer’s reliance on the plaintiffs’ lack of evidence was sufficient. Accordingly, if a person claiming to be aggrieved can point to no evidence of the basis of his or her claims of aggrievement during discovery, a developer seeking summary judgment is entitled to rely on that fact. A contrary ruling would, at least in the context of a challenge to a comprehensive permit, place onerous financial burdens on developers because multi-unit housing complexes that increase population in a community give rise to a host of potential consequences.

The implications of the SJC’s decision are clear. First, project opponents cannot reach trial on a challenge to a comprehensive permit merely by filing an affidavit saying that the proposed development will diminish their property values. Second, under either the Comprehensive Permit Statute or the Zoning Act, a developer is entitled to dismissal for lack of standing if it can show that a person claiming to be aggrieved cannot identify any evidence of the basis of his or her claims of aggrievement during discovery; the developer is not required to spend money on expert affidavits to prove a negative unless the abutter can present positive evidence of a real impact.

Standerwick comes three years after the last SJC decision concerning potential plaintiffs’ standing under Chapter 40B. In Planning Bd. of Hingham v. Hingham Campus, LLC, 438 Mass. 364 (2003) — a case won at the SJC by Mintz Levin Housing Practice Group members Paul Wilson and Benjamin Tymann — the Court held that municipal boards and officials are not “persons aggrieved” with standing to appeal a Chapter 40B comprehensive permit.

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If you would like to discuss the Standerwick decision or other matters concerning subsidized housing, please contact any member of Mintz Levin’s Housing Practice Group listed below.

Allan Caggiano
617.348.1705 ACaggiano@mintz.com
Jonathan Cosco
617.348.4727 JMCosco@mintz.com
Nicholas Cramb
617.348.1740 NCCramb@mintz.com
Daniel Gaquin
617.348.1784 DOGaquin@mintz.com
Marilyn Newman
617.348.1774 MNewman@mintz.com
Gabriel Schnitzler
617.348.3099 GSchnitzler@mintz.com
Jennifer Sulla
617.348.3092 JSulla@mintz.com
Benjamin Tymann
617.210.6853 BBTymann@mintz.com
Meredith West
617.348.1626 MWest@mintz.com
Paul Wilson
617.348.1760 PWilson@mintz.com

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