PS 20-000125
Mass. Land Ct.Oct 7, 2021Background
- In October 2019 the Boston Zoning Board of Appeal granted Onsite Builders variances for two separate Heron Street projects: a 40-unit rental at 11 Heron and a 32-unit condominium at 26 Heron.
- Plaintiff C.A.D. Builders owns a 7.75-acre undeveloped parcel called the Extension nearby; C.A.D. proposes a 29-lot residential subdivision (an extension of Willet Street) and appeals the variances claiming harm to that development.
- The Extension abuts the 26 Heron site (so C.A.D. plainly is an abutter to 26 Heron) but does not abut 11 Heron; proposed Lots R and S would border the 26 Heron project; wetlands and buffer zones affect many Extension lots and C.A.D. had not obtained all permits or built homes when summary judgment was moved.
- Statutory standing analysis is governed by the Boston Enabling Act §11 and mirrors G.L. c.40A §17 party-in-interest and party-aggrieved standards.
- Onsite moved for summary judgment arguing C.A.D. lacked standing because its development was speculative/incomplete; C.A.D. argued it had standing to challenge both variances and that §11 should be read broadly.
- The court denied summary judgment because disputed facts remain about C.A.D.’s standing and whether Onsite rebutted the presumption of standing for impacts on as-of-right development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge 26 Heron (party-in-interest under §11) | Extension abuts 26 Heron — C.A.D. is an abutter and thus presumed party in interest | Onsite contends harms are speculative because C.A.D. lacks completed permits and built improvements | C.A.D. is presumed to have standing as to 26 Heron; Onsite failed on summary judgment to rebut that presumption because it did not show lack of effects on as-of-right development |
| Standing to challenge 11 Heron (party-in-interest under §11) | C.A.D. says its abutment to 26 Heron (across Heron St) and §11's wording support standing for 11 Heron too | Onsite says the Extension does not abut 11 Heron; Arena forbids skipping intervening streets and §11 should be read as tied to the subject property | No presumption of standing for 11 Heron; C.A.D. bears initial burden but presented enough evidence to survive summary judgment and require a trial on standing |
| Interpretation of phrase "property line of the petitioner" in c.40A §11 | C.A.D. reads it to mean any property owned by the petitioner, producing a broad class of parties in interest | Onsite (and court) read it as the property line of the property that is the subject of the zoning application | Court construes the phrase to mean the property line of the property that is the subject of the petitioner's application and rejects C.A.D.'s expansive reading as absurd and unworkable |
| Standing of owners of vacant land / speculative-harm rule | C.A.D. relies on eminent-domain cases to argue hypothetical development harms may support standing | Onsite argues C.A.D.'s development is speculative (no building permits, incomplete approvals) so harms are not ripe | Court rejects purely hypothetical-development standing; owners of vacant land may have standing only when harms affect an as-of-right development (what can be built without discretionary approvals); disputed factual record requires trial |
Key Cases Cited
- Porter v. Board of Appeal of Boston, 99 Mass. App. Ct. 240 (2021) (Boston Enabling Act standing standard parallels G.L. c.40A §17)
- Arena v. Town of Nantucket, 96 Mass. App. Ct. 1116 (2020) (abutter defined as sharing a boundary with the subject property; intervening streets cannot be ignored)
- Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 (2006) (party-aggrieved must show a plausible claim of definite violation of a private interest)
- Skyline Homes, Inc. v. Commonwealth, 362 Mass. 684 (1972) (eminent-domain precedent on valuation and hypothetical development)
- Fellsway Realty Corp. v. Building Comm'r of Medford, 332 Mass. 471 (1955) (landowner entitled to improve premises consistent with statutes and ordinances)
- 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 (2012) (plaintiff bears initial burden to establish standing when not presumed)
- Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 (2011) (diminished property values tied to protected zoning interests can support standing)
- Monks v. Zoning Bd. of Plymouth, 37 Mass. App. Ct. 685 (1994) (zoning provisions protecting neighborhood character can confer standing)
- Worcester v. College Hill Props., LLC, 465 Mass. 134 (2013) (statutory interpretation rules: read clauses harmoniously and avoid absurd results)