C.A.D. Builders LLC v. City of Boston Zoning Board of AppealC.A.D. Builders LLC v. City of Boston Zoning Board of Appeal
In October 2019, the defendant members of the City of Boston Zoning Board of Appeal (the “Board“) granted defendant Onsite Builders & Development, LLC‘s (“Onsite“) applications for two variances. The variances allow Onsite to build a 40-unit rental development, on the northeast side of Heron Street in Boston‘s West Roxbury neighborhood (the “11 Heron Project“); and a 32-unit condominium development, on the southwest side of Heron Street (the “26 Heron Project“). Eleven Heron Street is on the east side of Heron Street, across from 26 Heron Street. The Board granted separate variances for each project; this Decision will call them, respectively, the “11 Heron Variance” and the “26 Heron Variance.”
Plaintiff C.A.D. Builders, LLC (“C.A.D.“) timely appealed the variances, to the Suffolk County Superior Court, under § 11 of the Boston Zoning Enabling Act,
Onsite caused C.A.D.‘s appeal to be transferred to the permit session of this Court. See
Here are the undisputed background facts, first with respect to the Extension and its neighborhood. The Extension is surrounded by a quarry (to the west), Washington Street (to the south), the rear of various properties along the west side of Heron Street (to the east); and Willet and Thrush Streets (to the north).2 Willet Street is a private way open to the public. It‘s a dead end street, connecting only to Thrush Street. There are single-family homes along both Willet and Thrush Streets.
The Extension‘s on a hill that peaks at just over 243 feet in elevation. C.A.D. proposes to subdivide the Extension into 29 lots, along three subdivision roads. Those roads include an extension of Willet Street (that‘s why the project‘s called the “Extension“). After construction, extended Willet Street will continue to be a dead end. No part of the Extension or its subdivided lots will share a property line with, or connect to, Heron Street. (Like Willet Street, Heron Street is a private way open to the public. It‘s also a dead-end street, with access to only Washington Street, which lies southeast of Heron Street. There is no direct pedestrian or vehicular connection between Heron and Willett Streets: Heron connects only to Washington, and Willett connects only to Thrush.)
No part of the Extension shares a property line with the site of the 11 Heron Project. That‘s not the case with the 26 Heron Project. Once the Extension is subdivided, its Lots R and S will abut the 26 Heron Project. (The entire rear lot line of Lot S, and a part of Lot R‘s rear lot line, will border the 26 Heron Project.) The distance from the rear of the proposed residence on Lot S (the closest one in the Extension to the 26 Heron Project) to the nearest building approved for the 26 Heron Project is between 75 and 85 feet. The distance from the rear lot line of Lot S to the nearest building approved for the 11 Heron Project is 130 feet; the distance from the rear of the home proposed for Lot S to that same building is 215 feet.
At the time Onsite moved for summary judgment, C.A.D. was nearing completion of the Extension‘s roads, but had yet to build any homes. C.A.D. also had installed all utilities for the Extension except electricity. But the Extension contains vegetated wetlands. A large one is on the side of the Extension near the quarry, but Lots R and S, those abutting the site of the 26 Heron Project, contain wetlands too. It turns out that fifteen proposed Extension lots are within a regulated 100-foot buffer zone of vegetated wetlands. At the time Onsite moved for summary judgment, C.A.D. hadn‘t sought approvals or permits from the Boston Conservation Commission to build in the wetlands or their buffer zones. C.A.D. also hadn‘t received any building permits for homes in the Extension, hadn‘t begun advertising homes for sale, hadn‘t notified City authorities (as required under C.A.D.‘s approvals) of which Extension lots would be the site of affordable units, and hadn‘t started construction of any foundations or buildings.
The Extension and the sites of Onsite‘s projects are in the West Roxbury Neighborhood Zoning District under art. 56 of the Boston Zoning Code (the “Code“). The lots in the Extension that are proposed to be along Willet Street are in a “1F-6000” zone under the Code, which is part of one of the West Roxbury Neighborhood‘s residential subdistricts. Four of the 11 Heron Project‘s parcels, and all parcels in the 26 Heron Project, are likewise zoned 1F-6000. Some lots in the Extension are in a “Conservation Protected Subdistrict.” One 11 Heron Project parcel is zoned “Multi-Family Residential” (or “MFR“).
The law governing a party‘s standing under § 11 of the Boston Enabling Act to challenge a decision of the Board is identical to that controlling who may lawfully appeal local zoning board decisions under the Zoning Act,
the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list, notwithstanding that the land of any such owner is located in another city or town, the planning board of the city or town, and the planning board of every abutting city or town.
Onsite begins its attack on C.A.D.‘s standing by arguing that, with respect to the 11 Heron Variance, C.A.D. isn‘t a “party in interest.” As will become clearer later, this issue isn‘t critical to deciding whether Onsite wins on summary judgment, but it will be an important issue at trial, as it dictates which party has the initial burden of proof on the issue of C.A.D.‘s standing with respect to the 11 Heron Project. So the Court will start its analysis of Onsite‘s motion by looking at whether, with respect to the 11 Heron Project, C.A.D. is a “party in interest.”
This Court ruled in Arena v. Williams, 27 LCR 132, 133 (2019) (Vhay, J.), aff‘d sub nom. Arena v. Town of Nantucket, 96 Mass. App. Ct. 1116 (2020), that an “abutter” under
Hoping to gain a presumption of standing to challenge the 11 Heron Variance, C.A.D. makes two arguments. C.A.D. first contends that the Extension abuts the site of the 26 Heron Project. That site‘s across Heron Street from the 11 Heron Project; C.A.D. argues that‘s close enough for purposes of § 11. Arena rejects that contention, holding that one can‘t ignore intervening streets when deciding who‘s an “abutter-to-an-abutter” under
C.A.D. bases its second argument on
The Court rejects C.A.D.‘s interpretation of
Looking at the entire definition of “parties in interest,” this Court concludes that
Second, limiting the term “property line of the petitioner” to the property that‘s the subject of the petitioner‘s zoning application avoids having the number of “parties in interest” turn not on the location and characteristics of the property (the chief concerns of most zoning laws), but instead on the fortuity of who owns the property, something that zoning laws don‘t usually regulate. Under C.A.D.‘s reading of
So C.A.D. is presumed to have standing under the Boston Enabling Act to challenge the 26 Heron Variance, but not the 11 Heron Variance. Onsite next mines the
Under both the Boston Enabling Act and the Zoning Act, a private individual may not challenge a zoning-board approval unless that individual is a “party aggrieved.” See Porter, 99 Mass. App. Ct. at 241. To be a “party aggrieved” (and as noted earlier, “parties in interest” are presumed to have such aggrievement), the individual must “assert ‘a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.‘” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 27 (2006), quoting Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493 (1989) (construing “party aggrieved” standard under
Onsite argues that, as of the time it moved for summary judgment, C.A.D. didn‘t have complete approvals to build the Extension. Onsite thus contends that, under Medeiros, C.A.D. shouldn‘t be able to complain of the Onsite projects’ alleged effects upon the Extension. C.A.D. argues the opposite. Citing several cases (Skyline Homes, Inc. v. Commonwealth, 362 Mass. 684, 686-687 (1972); Clifford v. Algonquin Gas Trans. Co., 413 Mass. 809, 814-816 (1992); and Douglas Env. Assocs., Inc. v. Department of Environmental Protection, 429 Mass. 71, 75-76 (1999)), C.A.D. contends that private individuals properly may assert standing to file zoning appeals based on anticipated harms to their interests in hypothetical developments. The trouble with C.A.D.‘s argument is that all of its cases arise under
This Court thus won‘t give those who own vacant land, and who appeal their neighbor‘s zoning approvals under either the Boston Enabling Act or the Zoning Act, the ability to assert standing based on harms to whatever hypothetical development the appellant imagines. On the other hand, Onsite‘s contrary position - that owners of vacant land never have standing to appeal a zoning decision - goes too far. Medieros refused to go there. See Medieros, 17 LCR at 482 n. 81. A fairer application of Medieros, one that‘s consistent with Standerwick‘s objective of identifying “plausible claim[s] of a definite violation of a private right, a private property interest, or a private legal interest,” is to limit the standing of owners of vacant lots to those who can establish harms to as-of-right development of their lots: that is, development that the owner could undertake without obtaining anything other than a building permit or similar approvals. That‘s because, under Massachusetts law, “[a] landowner has a right to improve his premises by the erection and use of buildings thereon where he complies with the existing statutes and ordinances, and he is entitled to whatever permits may be necessary to enable him to exercise this right.” Fellsway Realty Corp. v. Building Comm‘r of Medford, 332 Mass. 471, 472 (1955). Plausible harms to an as-of-right development of a vacant parcel thus can form the basis for a party‘s standing under the Boston Enabling Act and the Zoning Act.
Where does that conclusion leave Onsite‘s motion for summary judgment? In making its “vacant property” challenge to C.A.D.‘s standing, Onsite‘s Land Court Rule 4 statement of material facts focuses on C.A.D.‘s lack of permits for the complete 29-lot subdivision of the Extension, rather than what C.A.D. could build as of right. The Court also can‘t determine from the parties’ Rule 4 submissions which lots C.A.D. indisputably has the right to build upon, what sort of structures C.A.D. indisputably could build as of right on those lots, or what sort of harms (if any) those as-of-right structures would suffer from Onsite‘s projects. Since Onsite has the burden of overcoming C.A.D.‘s presumed standing with respect to the 26 Heron Project, Onsite‘s failure to demonstrate the lack of that Project‘s effects upon an as-of-right development within the Extension dooms Onsite‘s vacant-land challenge to C.A.D.‘s standing, at least for now.
The result‘s the same with respect to the 11 Heron Project. While (since it lacks a presumption of standing with respect to that project) C.A.D. bears the initial burden of establishing its standing to challenge it, even on summary judgment, see 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700-701 (2012), at oral argument on Onsite‘s motion, C.A.D. contended (and Onsite didn‘t dispute) it‘s entitled to build something residential within the Extension. That‘s a reasonable assumption: after all, the Extension contains 7.75 acres, and it‘s in a residential subdistrict. Onsite‘s Rule 4 submissions contain no evidence that the entire Extension is subject to the jurisdiction of the Conservation Commission or some other authority that could veto the Extension‘s development. C.A.D. also has presented enough evidence on summary judgment to suggest that development of the 11 Heron Project will adversely affect the “character” of the Extension‘s neighborhood, and in turn reduce the Extension‘s property values. While diminished property values, in and of themselves, usually can‘t support a party‘s claim of standing to challenge a development permit, a party may cite diminished values as part of his or her case for standing if they are “derivative of or related to cognizable interests protected by the applicable zoning scheme.” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 123 (2011), quoting Standerwick, 447 Mass. at 31-32. Section 7-3 of the Boston Zoning Code, “Conditions Required for Variance,” provides the required connection, that of protecting the Extension‘s neighborhood. Section 7-3 states (emphases added)3:
The Board of Appeal shall grant a variance only if it finds that all of the following conditions are met:
(a) That there are special circumstances or conditions, fully described in the findings, applying to the land or structure for which the variance is sought (such as, but not limited to, the exceptional narrowness, shallowness, or shape of the lot, or exceptional topographical conditions thereof) which circumstances or conditions are peculiar to such land or structure but not the neighborhood, and that said circumstances or conditions are such that the application of the provisions of this code would deprive the appellant of the reasonable use of such land or structure;
(b) That, for reasons of practical difficulty and demonstrable and substantial hardship fully described in the findings, the granting of the variance is necessary for the reasonable use of the land or structure and that the variance as granted by the Board is the minimum variance that will accomplish this purpose;
(c) That the granting of the variance will be in harmony with the general purpose and intent of this code, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare; and
(d) That, if the variance is for a Development Impact Project, as defined in Section 80B-7, the applicant shall have complied with the Development Impact Project Exaction Requirements set forth in Section 80B-7.3, except if such variance is for a deviation from said requirements.
In determining its findings, the Board of Appeal shall take into account:
(1) the number of persons residing or working upon such land or in such structure;
(2) the character and use of adjoining lots and those in the neighborhood; and
(3) traffic conditions in the neighborhood.
Zoning provisions that expressly require a board to consider a neighborhood‘s “character” before granting or denying a permit signal that neighborhood character is a protected interest. See Monks v. Zoning Bd. of Plymouth, 37 Mass. App. Ct. 685, 688 (1994). Monks further holds that such requirements give individuals living in the affected neighborhood the right to assert standing if they can show losses resulting from changes to the neighborhood‘s character. C.A.D. has provided evidence on summary judgment that the Extension will be worth less if Onsite‘s projects are built. While that evidence speaks to the value of the overall Extension, and the effect of both Onsite projects on the overall Extension, that‘s enough to get C.A.D. past Onsite‘s standing challenges as they pertain to the 11 Heron Project. See Attorney General v. Bailey, 386 Mass. 367, 371 (1982) (court must construe summary-judgment record in light most favorable to non-moving party). C.A.D. nevertheless will have the initial burden at trial of showing how construction of the 11 Heron Project, by itself, will alter the character of the neighborhood enough to result in plausible harm to an as-of-right development within the Extension.
The Court thus concludes from the evidence and arguments presented on summary judgment that this case requires a trial concerning, at a minimum, C.A.D.‘s standing. The Court ORDERS the parties to appear by telephone for a pretrial conference on November 5, 2021, at 2:30 P.M. A separate notice of pretrial conference will issue.
SO ORDERED.
VHAY, J.