Mariani v. Planning Board of Dennis, 2023 WL 5569556 (Mass. App. Ct. August 25, 2023).

Earlier this year, the Massachusetts Appeals Court again addressed a plaintiff’s standing to bring a zoning appeal pursuant to G.L. c. 40A.

In Mariani, the Plaintiffs (a married couple, the “Marianis”) appealed a decision of the Planning Board of Dennis, Massachusetts (the “Board”), which granted Upper County Residences (“UCR”) a special permit to build eight two-bedroom residences in Dennis, MA (the “Project”). The Marianis argued that the construction would cause an array of harms – increased noise, traffic, sewage, flooding, detriment to the aesthetic character of the neighborhood, violation of density requirements, privacy, and overcrowding. Following cross motions for summary judgment, the trial court ruled for UCR and the Board, finding that the Marianis lacked standing to challenge the Board’s decision. The Marianis appealed.

The Appeals Court affirmed the trial court’s decision. Although the Marianis were entitled to a rebuttable presumption of standing as direct abutters to the Project, UCR rebutted the presumption by presenting affidavits from experts who have concluded that the ambient noise on the Marianis’ property would be diminished, traffic would remain unaffected, and the septic system would adequately protect against sewage and water overflow. With the presumption rebutted, the Marianis had to produce “credible evidence to substantiate their allegations” and show that they will suffer a unique and cognizable injury that is “not merely reflective of the concerns of the community.” The Marianis failed to offer such evidence and therefore were unable to establish standing to maintain the appeal. 

The Court also held that inconsistency in aesthetics or neighborhood appearance is not ordinarily an interest protected by chapter 40A and, absent a more specific allegation of harm, the Marianis’ claimed aggrievement cannot form a basis for standing. Id. The Marianis’ arguments concerning density and privacy suffered a similar fate. The Court ruled that merely alleging “overcrowding” without showing tangible harms (such as noise, traffic, or sewage use) was not enough. Finally, the Court determined that the bylaws’ density requirements did not intend to insulate the Marianis from any loss of privacy caused by the Project. 

This case serves as a reminder to abutters that standing – a threshold jurisdictional requirement in a zoning appeal -  cannot be proven by speculation, personal opinion or conclusory allegations of generalized harms.