The Appeals Court recently had another occasion to address standing in the zoning context. In an “unpublished” decision under the court’s Rule 1:28, a three-judge panel in Brooks v. Chelmsford Hillside Gardens, LLC (pdf) reversed an underlying Land Court decision (pdf) that had dismissed, for lack of standing, an appeal of a comprehensive permit for an affordable housing development under M.G.L. c. 40B. The panel determined that the plaintiffs had presented credible evidence of an impact on their properties from an allegedly defective drainage system – even though the Land Court judge had determined that the plaintiffs’ expert testimony on this point wasn’t credible.
The two plaintiffs were direct abutters to the proposed 44-unit affordable housing project. Their main objection was that this residential project would be located in what was otherwise a commercial zoning district, and would inevitably lead to conflicts with their businesses due to noise, traffic, lighting, etc. In other words, this was a garden-variety clash of abutting but inconsistent land uses – but plaintiffs’ counsel apparently realized that this clash alone was not enough to establish standing.
The plaintiffs asserted that they had standing based on particularized impacts from what they claimed was the project’s defective drainage system. One plaintiff documented that the system included a pipe that would discharge stormwater onto the plaintiff’s property. The Appeals Court panel found that this was pretty much a no-brainer: an actual, physical trespass certainly constitutes the kind of “particularized injury” required for standing.
The more interesting aspect of this decision is the panel’s determination that an increase in groundwater levels caused by a subsurface recharge structure also sufficed to establish standing. The plaintiffs offered expert testimony that the proximity and elevation of the subsurface recharge system created a risk of higher groundwater levels on their properties. The defendant offered no rebuttal testimony on this point.
The Land Court judge had discounted the plaintiffs’ expert testimony as speculative. However, the Appeals Court found that – at least for purposes of analyzing standing – this ruling was improper, especially in the absence of any responsive testimony from the defendant, and without a more specific explanation by the trial judge.
The panel put a lot of emphasis on the defendant’s failure to offer rebuttal testimony regarding the effect of the recharge structure. However, I don’t think rebuttal testimony would have changed the result, because under the Supreme Judicial Court’s decision in Marashlian v. Zoning Board of Appeals of Newburyport (pdf) and it progeny, an abutter need only offer credible evidence of a plausible claim of a particularized injury. Once the plaintiff meets that test, it’s not clear that any amount of rebuttal testimony can defeat standing.
I’m also a little surprised by the panel’s willingness to venture into an area normally reserved for the trial judge – the credibility of witnesses. The Land Court judge heard the testimony of the plaintiffs’ expert firsthand, and explained why he thought that testimony wasn’t credible. The panel in effect is saying that the trial court shouldn’t evaluate the expert’s credibility; in other words, if there’s any testimony that groundwater levels on abutting property will change, standing has been established.