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From the State of Nature to Municipal Zoning Law
Episode 814th February 2022 • Legal Judg(e)ments • Bernkopf
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Bob and Dan Dain talk about the role of the judiciary in land use litigation and how the concept of “injury”, as interpreted by the court in Murchison v. Zoning Board of Appeals of Sherborn, saved real estate development in Massachusetts, particularly in “down zoning” jurisdictions like Boston. Dan also explains how zoning regulations constitute the single greatest contributor to the obesity crisis in America. A must listen for all land use lawyers, town planners, and real estate developers.


Bob Stetson: [:

An outgrowth of the development of civil society in this way was the concept of Nuisance Law. That is that a property owner possessed a legal claim against a neighboring landowner whose use of their land unreasonably interfered with the [00:01:00] use or enjoyment of the claimant's land. Following the industrial revolution, however, as populations became more concentrated in business and commerce came to the forefront of society in the eyes of many, the law of nuisance became an inadequate means for regulating land use and in particular from protecting citizens from safety hazards, whether environmental, fire safety risks, or as we have all been reminded due to the recent pandemic, the spread of disease due to overcrowding. In response to these concerns, governments created zoning laws.

people. [:

The owners of a three acre, largely wooded, vacant, lot Merriann Panarella and David Erichsen obtained a building permit to construct a single-family home. And they sparsely developed largely bucolic neighbors. The neighbors from across the street, Robert and Alison Murchison challenged the building permit because the lot, according to the Murchisons, did not meet the 250-foot lot width requirements of the Sherborn zoning bylaws, following extensive litigation and trial in the Massachusetts land court, the court rejected the neighbor's challenge on lack of standing grounds.

the Murchisons were injured [:

The Massachusetts Supreme Judicial Court agreed to review the case. Was this a case of reasonable regulation or would the court view this as a valid exercise of property rights triumphing over restrictive land use policies? This is Murchison vs. Town of Sherborn. [00:04:00]

fluential, local real estate [:

Dan represented the property owners here, Panarella and Erichsen. Welcome Dan. Thanks for joining.

Dan Dain: My pleasure. Thanks for having me.

Bob: I want to set the stage here a bit before we dive into the decision. You were not trial counsel on this matter, and you did not represent Panarella and Erichsen at the appeals court. Panarella is actually an experienced litigator and she represented herself on most of this case. But when you read the appeals court decision reversing the trial court, you had a reaction to it, and you took some action to get involved. I'd love for you to share with the listeners, why you believe the appeals court decision required a swift and firm response and how you ultimately came to join the.

k it up to the appeals court [:

And if so, the merits of their appeal, what's your legal argument. And the standing requirement, I think is an extremely important one. It's been called the gatekeeper function for courts, and it's long been established under article three of the constitution, that the role of the courts is not to issue some kind of cosmic justice or to stand there as a super governmental agency to [00:07:00] second guess every decision that local government or state government makes but to be there to address injuries.

ring cases at all. And so, I [:

and so that's how I ended up working with them. So, it just fortuitously, they reached out to NAIOP, I think within days of when I had read the decision and thought oh goodness, this is really bad.

So, the timing worked out well.

th, [:

However, the opinion explaining the reasoning for the SJC decision. Didn't come down until several months later in July. And that's typically how appellate decisions work. There's a briefing period. There's oral argument. The judge has spent some time putting together their decisions. You get a decision 3, 4, 5 months down the road.

In this case, the SJC found it important to get you an immediate response even before they had time to write out their reasons, an unusual and extraordinary step. Why, in your opinion, did the SJC act so quickly on this case?

Dan: I'd never seen it before either. I was shocked. I thought the argument went very well when I came out of the court on March 5th.

I think my [:

Sometimes they come down sooner, but I just mentally prepared myself and my clients to wait about three, three and a half months for a decision. And I think one of my colleagues came into my office the next day and said, I think the courts already ruled. And I was like, wait, what? And I checked my email and there was an email from the court with just a single sentence saying that the trial court, the land court's decision by Chief Justice Sheier had been affirmed decision to follow.

And I was like, oh, okay. So, wait, the trial court's been affirmed. That must mean, I don't think it even said that they were overturning the appeals court. They just jumped right in and said no we're affirming the land court decision to follow. So, I think I read it three times and realized that this was good news and, immediately called the clients.

There's no question the [:

I thought if the SJC took the case, they were going to overturn the ruling because it would have overturned established, standing jurisprudence so dramatically. And I haven't seen very recent statistics, but at least at one point the Supreme Judicial Court were only taking about 3%. Of applications for further appellate review from civil cases in Massachusetts.

making the argument that the [:

And we had to make the argument that they should take it, not because there's anything about a single-family home in Sherburne, but because disturbing establishes standing jurisprudence had wide ranging effect on development all around the Commonwealth. And this was pre pandemic, but at absolutely the worst time for the housing crisis that the entire Commonwealth has faced.

And we got an Amicus brief from the home builders association weighing in also at how they believe that change in standing jurisprudence would have a tremendous chilling effect on the entire development and home building community. And so, we had made the argument on the application for further appellate review that if standing we're no longer a gatekeeper than it would embolden neighbors who were posted development to challenge just about every development project around the Commonwealth, which would make a further home development, as well as any development far more uncertain and expensive.

the decision, I assume that [:

Bob: So, I want to follow up on that. The issue of standing is so intertwined with land use development, as you said, and you've already explained, there are really two parts to every. Zoning appeal, one standing, whether there's been an agreement and then to whether or not there is a case on the merits, whether there was a violation of the zoning bylaws, et cetera, and so forth.

Now zoning itself is inherently conservative. The purpose in many respects is to protect existing uses and separate uses, protect, neighborhoods and things of that nature. Especially in places like Boston, where you and I do a lot of work progress and development often come up against zoning laws.

pers go through an extensive [:

It requires that they spend, money on not just outreach, but on the development plans, themselves engineering, traffic studies architectural plans, design work, et cetera, and so forth. The process to obtain a variance for a project can take years and costs many hundreds of thousands of dollars in some instances.

if after all that work after [:

They can. They may, if they prove standing, have a darn good chance at success. And so, standing, and you've already alluded to this, but standing often is the tail wagging the dog in these really large development projects. And it can be the difference between, widely supported development, changing a neighborhood and a gigantic waste of money.

ould have impacted standing. [:

Dan: It's a hugely important question that really gets to some fundamental issues in real estate development.


They would all be illegal [00:17:00] mostly due to the setback requirements that you alluded to that were originally adopted to try to eliminate what were considered slums along the water. Which were places where a disease in fire and pollution created unsafe living conditions. Today, we deal with those things through public health, through better fire codes but the notion of what was called at the time of garden city movement of bringing the suburbs and green space into the city meant that we had a highly suburban set of zoning laws, trying to be applied to a dense urban city. The result of that is that because it's nearly impossible to develop anything in Boston, as a matter of rights, since almost no proposal complies with the zoning requirements, there's really only two ways that anything ever gets built in Boston.

e an acre. You can do a plan [:

In the vast majority of all other cases, anything from doing an addition on a home, to a new single family, home to larger developments, particularly the multi-family housing, the city badly needs. As you say, it's land use planning through variances. And the standard for variants, which we don't need to dive into too deeply, but it's exceedingly rare that any proposal meets the standard. the only time that I've ever seen variances being upheld by the court,

and I've had a couple of them in my career is where there's ledge or something in the middle of a property that makes building in the middle of a property, impossible. And it forces development closer to an edge. And therefore, you need a variance from the setback requirement because some condition on the property itself typically ledge or rock outcroppings make building in the middle impossible.

city of Boston. Particularly [:

And the court is always going to overturn the variance if the neighbor who's bringing the appeal, who doesn't want the development has standing. This has certain ramifications. The first ramification is if you're a developer and by developer, any proponent of a project developer could be any, anything from a family who wants to build their own home to a big commercial developer.

Don't get in your head. This image. Big rich developers. The only one that this affects, this is anyone who's trying to build in the city of Boston and building in the city of Boston at a time of a housing crisis where normal people can't afford to live in the city is so important. I think for our economy and for the city that we want to be, we don't want to have a city that's only open and available for people of considerable means.

, this has a major impact on [:

And I think that's something that the city of Boston actually likes and wants. And there's something about it that seems elegant in a way, which is okay, you can do this as long as nobody objects. And so, if you want nobody to object, you got to go to all your neighbors and make sure that they're happy.

That sounds like a nice thing. The problem is that it has certain effects on the way the city develops. One is a lowest common denominator effect. Things can still get built, but if you have to please everybody, it becomes a handout of like, all right we'll eliminate this and we'll eliminate that.

of lowest common denominator [:

So, everyone wants off street parking well off-street parking can be very expensive and. Particularly young people are moving into the city today, or it's not the same kind of car dependent way of living that historically was the case. And so parking requirements tend to be far higher than the actual usage but having an unused parking space in a building takes away from, rentable or livable space.

And it acts essentially as a tax on the real estate making real estate far more expensive. So, this has far reached ramifications on how things get developed in the cost of development, leading to higher prices. the one place that there can be pushback is on standing. When these cases get litigated, the variance cases in the city of Boston, they are almost entirely standing fights.

in the SJC, overturning it, [:

But it has reached some semblance of. A workable situation. That's not terribly satisfying, but at least allows some things to be developed in the city really would be tossed on its head. Outside of Boston it's a little different because development doesn't proceed quite so much by variance.

More things can be done as a right or by special permit, which is a more forgiving standard of review. But the standing fight was going on. Is fundamental to the entire way that Boston does this land use planning.

Bob: There's a lot to [:

But I think that one of the points you made is that if the appeals court decision was upheld, standing would have been written out of the analysis. And I think, especially in Boston, and I think one of the reasons and correct me if I'm wrong is because of this idea or this concept that was championed by the appeals court.

That pretty much all dimensional regulations are related to overcrowding concerns. And therefore, any neighbor, especially in a place like Boston, where you said the lots are a bit smaller and in there is more overcrowding. Any neighbor would essentially have stood in that. Is that kind of what you were getting at?

ng is associated with things [:

Density is something that should be championed in the city because density is what I think is our single best land use response that we can come up with to the housing crisis, to the transportation crisis. Really to, to the climate change crisis in that it's been empirically demonstrated that the densest cities have the lowest per capita carbon consumption that in low density scenarios where you push people further and further out it becomes a much greater car dependent, a way of living and that when people live much more densely, they're less car dependent, as well as the use of buildings on a per capita basis. The energy use is far more efficient. Single family homes end up leaking out air conditioning in the summer and heating in the winter, but at a multifamily building or a multiunit office building that loss of heat or cooling essentially captured by other units creating a more efficient space.


The neighbor who was opposed to this project lived across a street. There's a 60-foot setback requirement in Sherborn. Their parcel was actually 13 acres and they, there was a lake behind them, and their house was oriented toward the lake. The part of the house along the street was actually effectively the back of the house.

Which makes sense if you're choosing between having your, big windows, look out at a lake or look out on the street, you're going to orient your house to the street. And so, 13-acre lot, heavily wooded area. So, there are trees and vegetation between the house and the setback, 60 feet from the street.

e land to build their house. [:

And the courts had established that there's a difference between an impact and an injury. This is most clearly articulated in the Cantor versus Chatham ZBA case, which was actually another case of mine that I inherited after the appeals court and got up on further appellate review and argued before the Supreme Judicial Court and what the Supreme Judicial Court in Kenner said was that standing legal agreement requires an actual injury.

Sands in the Bomba case. The [:

And Judge Sands observed that there's a difference between hearing a noise and being injured by the noise. It's not enough to say I hear noise. Therefore, I've suffered injury. How were you injured by the noise? Is it a little bit of noise? It, a lot of noise. Is it during the day when you're in and out or is at night and going to keep you up at night?

And Kenner picked up on this and required an actual injury. It's not enough to just, perceive another building across the street. If there's lights on in the home and you look out your window and you see a light across the street in the woods, you perceive it. Maybe you're impacted by it because I see a light across the street.

e injury must be substantial [:

Not particularly articulated what that means. But the courts have picked up that it's certainly more than diminimous. It's gotta be a real injury. So, if you're talking about a house across the street, in the woods, 180 feet away from the back of your house, not even where your windows look out it seems like this is going to be the most impossible case to establish standing.

It seemed like a slam dunk. For the project proponents Panarella and Erichsen to establish that there'd be no injury. And the Chief Justice of the Land Court Justice Sheier, who's, I think, one of the Commonwealth, she's now retired, but one of the Commonwealth great land use jurists she understood the law very well applied the law of standing and found after a trial end of view.

no injury here. And when the [:

The Chief Justice in someone who's been doing this for over 20 years, I think. If anyone's going to get a ride, it's going to be Chief Justice Sheier. Particularly since standing is such a factual analysis. And she had said, factually there's simply no evidence of injury. And it found that there was no standing, but the appeals court did was, it was a reductionist kind of reasoning, which was to say that the only legal argument that on the merits that the Murchisons came up with was this notion of lot width.

d in fact, the Panarella and [:

And you take frontage at the lot line, which is 250 feet. And then you go back to the setback line of 60 feet, and you measure there. And that was also 250 feet, but Murchison, the neighbor had a unique argument, which is that think of it as a swinging line, which is okay. You take a first point of the setback line, and you pivot align.

And if, as you pivot that line and do a 180, if at any point. The width goes below 250 feet. You don't comply with the lot width requirement. Now this unique way of doing the measurement is not found anywhere in the language of Sherborn's lot width requirement, and it's not how the building inspector ever measured lot width.

Why the CBA of Sherborn had [:

We're not going to say whether they're right or wrong as to this interpretation of lot width, but if we assume for the stamp, because at standing, we're not supposed to decide the merit. So, if we assume that they're right on the merits, that there's a violation of lot width. That would allow if we don't overturn, essentially that would allow a house to be built that otherwise would not be able to be built.

o, the court said we need to [:

And therefore, if the lot width requirement was intended to prevent the overcrowding of land and you're adding additional house that wouldn't be. Then the judgment of Sherburn was that this would cause an injury that we need to prevent. And therefore, there would be an injury here. This was problematic on many levels.

But the effect of this reasoning is that anytime a project in theory, or arguably violates a dimensional requirement if you allow the project to go forward, you're getting additional. Building that otherwise wouldn't have been allowed. And you could call that density or overcrowded.

if that's the standard, then [:

And since that's the case in every zoning appeal, because you always have to have an argument on the merits. There is no zoning appeal where there's not at least an articulated merit argument. So, in that case, in every case where there's an articulated merit argument, which is every case, if you say that if we then allow the project to go forward, there would be a building there.

And the building would add to density. And the purpose of having dimensional use requirements is. Reduced density and to protect injury from that, then in every case, 100% cases they would be standing, and the standing requirement would go away. So that's why it was a scary decision. The reasoning was flawed in other ways.

ls. One is when town meeting [:

So, to say that Sherborn's lot width was to prevent injuries to neighbors. There's just, there's no legislative history of that, nor was there any presentation of legislative history in this case? So, there was a devoid of. Of any factual record as to what town meeting intended and nor could there have been because there wouldn't be a record of town meeting as to why they adopted the dimensional requirements.

And if you think about lot width the plaintiff here, Murchison lives across the street, how is lot width mentor to prevent injury to someone across the street? If anything, maybe arguably it's to prevent injury to neighbors on either side, but not to the front. A neighbor across the street. If you're going to say they're protected by dimensional requirements, it'd be setback and maybe frontage, but not lot width measured further back on the property.

the purpose of the lot width [:

Th this would defeat the expectations of project proponents all around the Commonwealth. And that if there's going to be such a radical departure from the law of standing, it shouldn't be coming from the appeals court. It needs to come from the SJC. And in fact, the SJC, hi, are you should overturn this because it's such a radical departure.

the Murchison decision, but [:

Have, existing standing law jurisprudence.

I just want to, so we can get back to that in a minute, but I want to, you've made the distinction, or you've drawn the distinction between density and overcrowding as a purpose, underlying certain dimensional requirements in zoning. And as I mentioned in the opening.

Especially in the early days of zoning cases, one of the reasons that zoning was upheld, even though it is clearly a restriction on property rights, is this concept of it's to promote the health, safety, and welfare of the citizens in this case. As you pointed out. Three acre, lots that are being required.

foot [:

So, we've talked a lot today about standing and the merits of zoning. And as those being the two main ways where a proponent of a development, not necessarily a developer air quotes, [00:38:00] but, even someone building a single-family home, those are the two main ways to deal with a zoning appeal.

I want to know. Do you think that there might be a third way and when I see a regulation like this, 250-foot lot width, I don't see that there's any reasonable connection to the type of health, safety, and welfare, as you pointed out of some of the zoning laws in Boston, to really prevent overcrowding?

ning board myself and having [:

I see that density. Is something that towns and the citizens of towns really do look at when it comes to the zoning regulations, but not necessarily the overcrowding. And so, my question for you. Is there a third route to challenge some of these types of what, in my view are unreasonable zoning restrictions.

as the obesity crisis, it's [:

There's a direct link between density and health outcomes that in fact, people are much healthier living in dense areas for the simple reason that people walk instead of drive. So, there's much about the way we do land use planning in Boston and Massachusetts and around the country.

ng back to the Euclid case in:

That we should be thinking about in terms of how we do land use planning. I think the most fundamental [00:41:00] one in Massachusetts is really the home rule amendment and the way that we do land use planning on a municipality-by-municipality basis, which makes absolutely no sense that land use planning should be done on a regional basis.

And that we really do want to be protecting our open space and having land that's not developed. But by having every municipality make its own rules and every municipality essentially wanting to have low density, it keeps pushing development further and further out. And municipalities, the notion that large lot zoning protects bucolic feel and rural feel I think is, has it absolutely.

aging on much smaller, lots, [:

Bob: Dan that's all the time we have for today. Thank you for joining us. Check out our show notes for more information on today's case. And if you are involved in an interesting civil case or know about one that you think would be a good topic for the show, reach out to me at

Don't forget to subscribe to this podcast. And of course, if you like what you heard, please leave us a positive review. Thanks for listening.