Are you a “person aggrieved”? If so, Massachusetts courthouse doors swing wide open so you can challenge government permits issued to real estate developers. But if not, you have little, if any, right to contest such permits in court.
Developers must seek and obtain approvals from an array of state and local agencies before putting a shovel in the ground. For controversial projects, hastily organized citizen groups pack hearing rooms to voice opposition. Even a minor change to an unpopular project can attract the ire of dozens of citizen groups. Such groups can slow the permitting process, forcing developers to expend time and money. Administrative agencies often welcome citizen group participation at hearings. However, the commonwealth’s courts are becoming less accommodating to such groups, unless the groups’ members are actually “aggrieved” by an agency’s decision.
The Massachusetts Appeals Court’s unpublished September decision in Coalition to Preserve the Belmont Uplands and Winn Brook Neighborhood v. Department of Environmental Protection, exemplifies this trend. The developer in that case proposed a 299-unit affordable housing project in Belmont. The local conservation commission denied a wetlands permit for the project, but the Department of Environmental Protection approved the project on appeal. The local commission challenged the DEP’s decision, forcing the DEP to hold an adjudicatory hearing. The hearing officer allowed a coalition of 12 Belmont residents and two conservation groups to intervene in the hearing and contest the wetlands permit. Nevertheless, the DEP’s commissioner upheld the approval. Undeterred, the coalition filed a complaint in Superior Court, but the court affirmed the DEP’s decision. The coalition appealed.
The developer asked the Appeals Court to dismiss the coalition’s appeal, arguing that the coalition lacked “standing” to challenge the development in court. This argument has become a powerful defense for developers facing opposition from private parties. Massachusetts law generally requires that persons show that they are “aggrieved” in order to appeal a license or permit in court. If they cannot show aggrieved status, they lack standing to maintain their appeal, and the courts will dismiss the appeal, regardless of its merits. Thus, the opening battle in permitting lawsuits often requires complainants to prove their aggrieved status. To satisfy this burden, complainants must show a substantial likelihood of economic loss or nuisance, causing measurable harm to them. General dislike for the project does not, by itself, suffice.
In Coalition to Preserve Belmont, the Appeals Court acknowledged that Massachusetts law generally allows citizen groups to intervene in administrative hearings without difficulty. However, this does not automatically confer aggrieved status on the group when it appeals an adverse decision in court. A developer can ask the court to dismiss the appeal, by claiming that the citizen group is not truly aggrieved. After reviewing the administrative record in Coalition to Preserve Belmont, the Appeals Court found no evidence that the coalition was actually aggrieved, and ordered that the coalition’s complaint be dismissed.
One can draw two lessons here. First, citizen groups do not have automatic access to Massachusetts courts when seeking to block developments. Developers should vigorously contest their opponents’ standing in such cases. Second, unless citizen groups carefully assemble a record during the administrative process, showing how the development will harm their members, the courts will reject their appeals.
To hinder a development in Massachusetts courts, it is better to be aggrieved than not.
Christopher R. Vaccaro is an attorney at Looney & Grossman LLP in Boston. His email address is cvaccaro@lgllp.com.
