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Volume XI, Number 206

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Mass. Appeals Court Imports Chapter 40A Presumption of Standing into Boston Zoning Enabling Act

A recent decision of the Massachusetts Appeals Court, Porter v. Board of Appeal of Boston (pdf), addressed the question of standing to appeal a variance granted by the Board of Appeal of Boston (“BOA”).  Zoning in Boston is governed by c. 665 of the Acts of 1956, as amended (the “Enabling Act”), not by M.G.L. c. 40A (the “Zoning Act”), which applies to all other cities and towns in Massachusetts. See Emerson College v. City of Boston, 393 Mass. 303 (1984).  In Porter, the Appeals Court applied to the Enabling Act standards and legal reasoning that are derived from unique language in the Zoning Act.  The court found that parties entitled to receive notice under the Zoning Act are presumed to have standing under the Enabling Act.

The pro se plaintiff in Porter appealed a variance granted to a nearby property owner. In his complaint, the plaintiff claimed to be an “abutter” to the subject property but he did not use “abutter” in a literal sense. In considering the defendant’s motion to dismiss, both the Appeals Court and the trial court took notice of the actual location of the respective properties. Disagreeing with the trial court, the Appeals Court found that the plaintiff’s property was one of a few parcels “directly across the street” from the subject property, and that this conferred a rebuttable presumption of standing based on the specific language of Section 11 of the Zoning Act. The ultimate question of standing will be resolved later.

While courts regularly look to Zoning Act jurisprudence in deciding Boston zoning cases, here the Appeals Court incorporated a defined term from the Zoning Act  into the Enabling Act. The term “parties in interest” is defined in Section 11 of the Zoning Act as:

[T]he 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.

These “parties in interest” must receive notice of the hearing and are presumed to be aggrieved and therefore presumed to have standing, unless that presumption is rebutted.

While parties in close proximity would usually get notice of a variance hearing under the Enabling Act, they are not entitled to notice. Section 8 of the Enabling Act requires the BOA to give notice to “the owners of all property deemed by said board of appeal to be affected thereby.” Enabling Act, Section 8, ¶ 8 (emphasis added). The Enabling Act only uses the term ‘party in interest’ once, in the last paragraph of Section 8, and the term is not defined as it is in Section 11 of the Zoning Act.

The Appeals Court has now applied to Boston zoning matters the familiar presumption of standing afforded by the Zoning Act, even though the notice obligations are different under the Enabling Act and the Zoning Act. This case is another significant step in the trend of courts imputing to the Enabling Act the legislative concerns and intentions of the Zoning Act. See Chiuccariello v. Building Comm’r of Boston, 29 Mass. App. Ct. 482, 489 (1990) (pdf). Porter will likely make appeals of zoning relief granted by the BOA harder and more costly to defend by giving neighboring property owners the significant advantage of a presumption of standing.

©2021 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XI, Number 64
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About this Author

Joel Quick Real Estate Attorney Pierce Atwood
Associate

Joel Quick focuses his practice on land use and real estate law, providing a full array of legal services for any commercial or residential development project, including analyzing land use and local environmental regulations and appearing before public bodies to seek needed relief. Joel also negotiates and drafts any restrictions, easements, and covenants required by a municipality as a condition of approval, and, if needed, will seek amendment of affordability, conservation, and preservation restrictions. With experience acting as counsel for a number of municipalities and municipal...

617-488-8157
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