Yes, In Your Back Yard

Paul McMorrow’s recent op ed in The Boston Globe discussed the impacts of the recent decision issued by the Massachusetts Supreme Judicial Court on a zoning dispute in Chatham (Kenner v. Zoning Board of Appeals of Chatham).  This case brought to light an issue developers in Massachusetts have known for years – a few dissatisfied residents have the power to stall development projects in the court system for years, many times without proper standing.

In most cases, the project opponents have not sustained actual harm (the primary qualification for challenging a local zoning decision), but they still have the ability to slow and potentially kill a new development.  At least, that is, until now.    

With its decision in this case, the SJC raised the bar for NIMBY (Not In My Back Yard) lawsuits.  The typical NIMBY suit is based on the litigant’s perception that a proposed development will impact them.  With this ruling, the SJC clearly stated that for a suit to move forward there must be true and measurable harm to the aggrieved party.

The SJC gave more authority to the Land Court to make decisions regarding the proper standing of a party to bring a law suit in opposition to a project.  In so doing, they basically took away the ability of the state appeals court to question the Land Court’s judgment on standing.

This decision is not going do away with all project appeals, nor will it screen out all frivolous appeals.  However, this is one of the clearest messages we have seen in years from the courts.  It recognizes that it is unfair to allow a local minority to use litigation for the sole purpose of preventing approval of development projects that were fully vetted through a legitimate public permitting process.  NAIOP applauds the decision!

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