With credit markets at their worst since the Great Depression, real estate developers have their work cut out for them. Industry insiders are hopeful the economy will turn around soon. When it does, long dormant plans for construction will create jobs, invigorate neighborhoods and revitalize blighted properties.


Most will welcome this change. Others will resist, planting themselves firmly in the path of progress. Using lawsuits as their weapon of choice, these obstructionists will aim for the death of any proposed development, favoring their personal preferences and “not-in-my-backyard” dispositions over significant benefits the project offers the public at large.


Frequently, naysayers threaten to derail a project, not because they have any real gripe with it, but because they smell opportunity. Wielding legal challenges as a tool of extortion, they hope to coax an undeserved windfall from the developer in exchange for dropping their frivolous lawsuits.


While awaiting a project’s completion, the developer carries a burdensome load, including loan interest, tax bills, the opportunity cost of pursuing other plans, etc. If the anticipated cost of bringing a legal challenge is sufficiently low, and the developer’s expected cost of delayed construction is high, then a potential plaintiff may have sufficient incentive to bring suit, even if it is complete rubbish. This is unfortunate. But for developers, it’s a fact of life.


The key to getting rid of meritless legal challenges against developers is often found in the doctrine of “standing.” Standing is a threshold matter. Unless the plaintiff can demonstrate, at the very outset of the case, that she stands to suffer a real injury to a protected legal interest, the court must dismiss her complaint.


Many think of standing as a single idea. You either have it or you don’t. It’s better to analyze standing not as one single concept, but as four interrelated facets. Working together, these four separate but interconnected pieces can save a developer from frivolous and costly legal challenges.





Facet 1: Actual Harm


First and foremost, in order to have standing, a plaintiff must be at risk of experiencing actual harm. Unless presented with a specific person who stands to suffer a real harm, the court won’t weigh in on the matter. The plaintiff who fails to demonstrate a threat of actual injury fails to present a case. Such plaintiffs lack standing to sue.


Consider a proposed building of modestly priced condominium apartments in a town consisting primarily of large single-family homes. A group of high-end homeowners can’t stand the thought of the project in their town. Even if the project will violate nearly every zoning ordinance, if the disgruntled homeowners don’t stand to suffer an actual injury, they can’t sue. For example, if the plaintiffs live a sufficient distance from the development, such that they can’t credibly demonstrate that the development will affect them in some concrete way, they won’t suffer an “actual injury.” The court must dismiss their case.





Facet 2: Direct Result


Not only must a plaintiff suffer an actual injury, but the harm he alleges must also be a direct result of the development. Courts aren’t philosophers or theoretical physicists. They don’t ponder whether a butterfly flapping its wings may, under some confluence of unknown events, theoretically result in a tsunami on the other side of the globe. If a court is left to speculate as to whether the plaintiff will suffer the alleged injury, the plaintiff can’t proceed.


Consider a “big box” super store planned for a busy street. The store is immensely popular and will certainly draw large crowds. The owner of a nearby shopping plaza is concerned that long lines of cars waiting to enter the big box store will block visitors from entering the plaza parking lot. The plaza owner brings suit to overturn the developer’s hard-won building permit.


The consequence of an increase in traffic volume depends upon several variables, including the location of traffic lights, the distance between the big box store and the plaza, the existence of a dedicated turning lane, etc. The interplay of these and other factors will determine whether a sufficiently long queue of cars will accumulate to block the entrance of the plaza’s parking lot. Unless the plaintiff comes forward with a qualified traffic engineer who has created a complex statistical model for this specific situation, the court may be left with nothing other than the plaza owner’s speculation. In that case, the court should dismiss the challenge for lack of standing.





Facet 3: Unique Injury


There is a third facet to standing. The plaintiff’s injury must be different in nature or magnitude from that experienced by the general public. Courts prefer to punt broad-based policy questions to the legislature. Even if a plaintiff will experience a real and direct adverse effect from the development, if it’s not materially different from that felt by the general public, the plaintiff lacks standing.


Consider a large residence to be constructed near wetlands. The developer obtains an order of conditions from the town conservation commission. The abutting owners of more modest residences, displeased with the prospect of having a significantly larger home nearby, try to stop the development. They hire a well-known wildlife biologist who opines that the project will interfere with the habitat of a rare species. Armed with the biologist’s opinion, the neighbors bring suit to overturn the order of conditions.


Although the harm may be real, and the result may be directly traceable to the development, the court may still dismiss the challenge. The alleged effect on wildlife in the community arguably will be felt by the community as a whole, as opposed to these specific neighbors. If the loss experienced by the neighbors isn’t materially different in nature or magnitude from that experienced by the general public, the neighbors lack standing.





Facet 4: Area of Concern


There is yet another facet to standing. The injury that the plaintiff complains about must align with the purpose of the particular law at issue. A plaintiff has no standing unless she will suffer injuries within the area of concern of the statute or regulatory scheme she is using to bring suit. If the purpose of a law is to accomplish a certain goal, but curing the plaintiff’s alleged injury doesn’t further that goal, the plaintiff’s claim fails for lack of standing.


Consider a developer proposing to build a large hotel on the waterfront. The developer obtains a Chapter 91 license from the Department of Environmental Protection that authorizes construction in the tidelands. The planned structure will stand between the owner of a nearby office tower and the water, blocking the water views of the tenants and arguably decreasing the tower’s value. The owner of the office tower brings suit to overturn the developer’s Chapter 91 license.


The goal of Chapter 91 is to ensure that the tidelands are used for water-dependent purposes like navigation, or for a proper public purpose, such as access to the waterfront for public recreational use. The harms alleged by the owner of the office tower – his loss of a waterview, or the diminution in value of his private property – do not fall within the area of concern of Chapter 91. Accordingly, the plaintiff’s claim fails for lack of standing.





Lawsuits are an inevitable distraction to developers. When handled improperly, they can quickly become very expensive, and even cost the developer its entire project. When faced with a legal complaint, every developer, along with their litigation counsel, should consider these four facets of standing. In many instances a well-articulated standing argument could mean the difference between years of grueling litigation, and a quick and total victory.

Adam Lewis is a partner at Lewis & Kaplan LLP in Newton.