The development of a body of case law interpreting the regulations promulgated under c. 40B continues to lurch ahead with results that can sometimes be a little hard to understand.
The case of Bartlett Pond Village, LLC v. Wareham Zoning Board of Appeals, Housing Appeals Committee 09-15 (Sept. 16, 2014), is relatively straightforward. In Bartlett, the Town of Wareham denied a c. 40B permit for eighteen units of housing which the developer then scaled back to eight units of housing with two affordable units. On appeal to the HAC, the town argued that the developer lacked site control and therefore was not entitled to a comprehensive permit. Unfortunately, the decision is not clear about the facts on which the town relied in its assertion that the developer lacked site control. What the developer did have was a Project Eligibility Letter from MassHousing. The HAC held that since MassHousing must have determined that the developer had site control when it issued the Project Eligibility Letter, the letter was conclusive evidence that the developer had control of the site. See 760 CMR 56.04 (6).
But the case of Cserr v. Housing Appeals Committee, Superior Court Civil Action No. 2014-181o, is harder to reconcile with existing case law. This case involved an appeal from the Housing Appeals Committee to Superior Court. The developer and the HAC moved to dismiss the action on the grounds that the appealing abutter did not have standing. We have no facts in the opinion as to why the abutter’s standing might have been questionable. However, the Superior Court found that because the HAC had permitted the abutter to intervene in its proceeding, the HAC “implicitly, if not explicitly found him to be an aggrieved party.” It seems like a very thin reed to support standing in the absence of any other facts as to how the abutter was aggrieved by the grant of the comprehensive permit. Arguably, the Superior Court’s casual treatment of standing in Cserr is at odds with the rigorous approach of the Supreme Judicial Court in Standerwick v. Zoning Board of Appeals of Andover, 447 Mass 20 (2006) ( referring to “our long-standing jurisprudence that standing to challenge a zoning decision is conferred only on those who can plausibly demonstrate that a proposed project will injure their own personal legal interests and that the injury is to a specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect”). It would be helpful to practitioners in the area to have more guidance from the SJC after Cserr as to whether an abutter’s standing can be established “implicitly” by virtue of being permitted to intervene in the HAC process.