Superior Court Decision Raises the Bar For Municipalities Seeking to Challenge Special Permits And Other Zoning Actions Taken By Neighboring Municipalities
The Massachusetts Superior Court has ruled that a municipality lacks standing to challenge a special permit issued by a neighboring town when the alleged harm is “too speculative and remote to qualify them as ‘aggrieved parties’ with standing to pursue an appeal under M.G.L. c. 40A, § 17.” The case, Town of Chelmsford et al. v. Newport Materials, LLC, et al. (Case No. 1681CV03455) was brought by Chelmsford to challenge a special permit issued by the Westford Planning Board to construct an asphalt manufacturing plant in Westford on the border of the two towns. Chelmsford argued that because the towns had entered a “mutual aid agreement” under which Chelmsford firefighters could be called to fight a fire at the asphalt plant in Westford, it had standing to challenge the permit as a “person aggrieved” under M.G.L. c. 40A, §17. In an opinion issued in early September, the Superior Court disagreed, ruling that Chelmsford lacked standing to pursue its claims.
Standing is a prerequisite to jurisdiction in all courts: when a party lacks standing, the court lacks jurisdiction to hear the case and will dismiss it. Put simply, the legal doctrine of standing dictates who can—and who cannot—bring a particular lawsuit. In federal courts, standing derives from the “case and controversy” clause contained in Article III of the U.S. Constitution. But in Massachusetts state courts, standing has its origins in judicial economy and prudential considerations, and is arguably more restrictive. In the context of zoning and related permitting decisions, Massachusetts law provides that “[a]ny person aggrieved by a decision” has standing to challenge that decision. M.G.L. c. 40A, § 17. But courts have often struggled to cogently define who, exactly, constitutes a “person aggrieved,” with some legal analysts arguing that courts often reach “inconsistent results” on the issue.
In 1996, the Supreme Judicial Court held, in Marashlian v. Zoning Bd. of Appeals of Newburyport, that a party “is a ‘person aggrieved’ if he suffers some infringement of his legal rights” but that the alleged “injury must be more than speculative.” Applying this standard in 2011, the Supreme Judicial Court further held in Kenner v. Zoning Bd. of Appeals of Chatham that “[a]ggrievement requires a showing of more than minimal or slightly appreciable harm.” The court went on to explain that “[t]he adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy. To conclude otherwise would choke the courts with litigation over myriad zoning board decisions where individual plaintiffs have not been, objectively speaking, truly and measurably harmed.”
While recognizing that it did not automatically have standing to challenge the Westford Planning Board’s decision, Chelmsford argued that it was “aggrieved” within the meaning of the law because the two towns are part of a “mutual aid agreement” under which multiple municipalities have agreed to provide emergency aid to other towns in the agreement. Chelmsford argued that because the asphalt plant posed a special hazard and fire risk, and because Chelmsford firefighters could be called to the plant for a fire or other emergency, it was a “person aggrieved” with standing to challenge the permitting decision.
In rejecting Chelmsford’s argument, Superior Court Judge Tuttman reasoned “the myriad of conditions imposed” by the special permit made the project “as safe as any ‘light manufacturing’ permitted by the Bylaw.” But even if the plant did create a special hazard, the Judge Tuttman reasoned that Chelmsford would still lack standing because the alleged harm—a fire on the Chelmsford border to which Chelmsford firefighters could be called to respond— was “too speculative and remote to qualify [the plaintiffs] as “aggrieved parties.” In part, Judge Tuttman ruled against Chelmsford on this issue because while the permit holder submitted evidence demonstrating that the asphalt plant presented no special or unique danger of fire or explosion, Chelmsford failed to present evidence to the contrary. The court also held that Chelmsford lacked standing as a “municipal officer or board” because the Chelmsford officers and boards did not “have duties to perform in relation to the building code or zoning” in Westford, where the project is located.
Notably, the court was concerned that allowing the case to proceed would undermine the “person aggrieved” standard by allowing “any community that is a party to a mutual aid agreement the right to challenge another signatory community’s decision to allow any number of potential uses within its borders.” Applying both Marashlian and Kenner, the court concluded that it was required to construe the statute narrowly and in a way that “avoid[s] choking the courts with litigation over myriad zoning board decisions where individual plaintiffs have not been, objectively speaking, truly and measurably harmed.”
Chelmsford is determining whether to appeal. In the meantime, the decision confirms that municipalities seeking to challenge projects in neighboring towns must demonstrate real, measurable, and non-speculative injuries to demonstrate standing as a “person aggrieved.” Unless they do so with compelling and admissible evidence, they risk having their claims dismissed.