In November, 2010, we reported on the Appeals Court’s decision in 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline (pdf).  The court found that the defendant’s effort to rebut the plaintiff abutter’s presumption of standing – an effort that was based solely on the abutter’s deposition testimony, in which he offered his own unsupported opinions that he had beenNo Standing harmed – was not the type of “affirmative evidence” required to rebut the presumption.  In other words, in the Appeals Court’s view, the defendant in a zoning appeal couldn’t rely on the abutter’s own statements to rebut the presumption.  The court also upheld the Land Court’s decision concerning the application of “infectious invalidity.”

The Supreme Judicial Court (SJC) granted the defendant’s application for further appellate review, which was limited to the standing issue.  While agreeing with the result of the Appeals Court’s decision, the SJC wasn’t happy with the path the Appeals Court took to reach that result.  The Appeals Court’s decision suggests that a defendant can never rely on the abutter’s deposition testimony to rebut the presumptive of standing.  The SJC disagreed, and in a March 20, 2012 decision (pdf), found that in certain circumstances, the defendant may use an abutter’s deposition testimony to rebut the presumption.

As the SJC notes, “where a plaintiff acknowledges during discovery a lack of substantive evidence to establish a legally cognizable injury, a defendant may rely on those admissions to rebut the plaintiff’s presumption of standing . . . .”  The SJC cites its own 2006 decision in Standerwick v. Zoning Bd. of Appeals of Andover (pdf) on this point.  In 81 Spooner Road, unlike in Standerwick, the abutters’ deposition testimony did identify a legally cognizable injury:  violation of density-related provisions of the zoning bylaw.  Thus, that deposition testimony didn’t constitute evidence “warranting a finding contrary to the presumed fact” of aggrievement, and the defendant – in the SJC’s view – failed to rebut the presumption of standing.