Season 1 Episode 8. Release Date February 15, 2022

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 “downzoning” 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.

Listen to Season 1 Episode 8

Episode Highlights


“Boston does land use planning differently from the other 350 municipalities in the Commonwealth of Massachusetts. It’s not subject to the zoning act, Massachusetts general law chapter 40a. 1924 Boston adopted zoning for the first time. And over the decades has had a process of down zoning the city which means that Boston is adopted dimensional regulations that are more restrictive than the historical development patterns of the city. That means the neighborhoods that we architecturally find most pleasing in Boston: Beacon Hill, the North End, the South End, Charlestown back bay are none of them could be developed under current zoning.”


“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. And it, it makes development far more expensive and through value engineering, anything that’s architecturally interesting is going to be stripped out.”


“From a way that we order our land use planning in the Commonwealth and all around the United States it’s highly problematic from the modern perspective, given the crisis that I’ve mentioned in terms of housing, transportation, climate change, as well as really other crises, such as the obesity crisis, it’s really been shown that suburban land use development patterns of sprawl is probably the single greatest contributor to the obesity crisis that we suffer in the United States because it creates a car dependent society.”


“As I indicated earlier, all facts are to be considered in the light most favorable to the opposing party. In this case, The Sullivans. There was strong evidence all over the place in this case about builder vendor status about trade or commerce and certainly about half truths that really constituted whole lies, and unfortunately, we were unsuccessful in convincing the SJC.”


Murchison v. Zoning Board of Appeals of Sherborn

Episode Transcript

Bob Stetson: [00:00:00] As famed political philosopher. Thomas Hobbes explained in the Leviathan before civil society existed. Man lived in a state of nature in the state of nature. Life was in his words, nasty brutish and short, and strength and brute force prevailed over reason, fairness, and justice. As civil society developed so did law and government. From early laws like the Ten Commandments and Hammurabi’s Code through more modern ones like Magna Carta in England and the United States constitution, the purpose was to protect and promote the Liberty of Persons. And in that vein to provide protection and security to those, who in the state of nature, could not protect themselves.

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.

Although these laws to private landowners have their valuable property rights in some. Courts generally enforce them as a reasonable means to protect the health, safety, and welfare of its citizens. Fast forward a century to Sherborn, Massachusetts, a small bedroom community, just west of Boston with a population of less than 5,000 people. [00:02:00]

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.

In other words that regardless of whether the development violated the local zoning laws, the Murchisons weren’t sufficiently injured by the development and therefore lack the legal right to interfere with the owner’s property rights on appeal. However, the appeals court reversed concluding that the lot width requirements were established to prevent overcrowding and therefore the Murchisons were injured [00:03:00] sufficiently for purposes of standing.

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]

Welcome to Legal Judg(e)ments, where we tackle litigation and trial strategy by analyzing and talking about real legal cases. I’m your host, Bob Stetson, a Boston-based trial lawyer at Bernkopf Goodman. Today, we’re looking at a case that while on its surface, doesn’t trigger excitement necessarily when you dig below the surface, it strikes it issues that really impact all of us: safety, security, property rights, economic development, land use in America generally, and in this case specifically effects how we live, where we live and how business is done. To guide us through this very important case is Dan Dain. Dan is a highly experienced and skilled lawyer at Dane Torpey. He specializes in all matters, real estate related and holds prominent roles in several influential, local real estate [00:05:00] organizations.

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.

Dan: Yeah, it, that’s a great question. And the path of this case to me, is a little unusual yeah, you’re right. My clients are both experienced attorneys. They tried the case and took it up to the appeals court [00:06:00] and they’re highly capable attorneys and they did quite a good job and just ran into an appeals court judge with his own mind as to you know how standing should be. And he took an unusual view of what standing law is. For me in my practice representing predominantly commercial real estate developers around the Commonwealth. Their projects regularly are challenged by neighbors and in zoning appeals, there’s two aspects to the cases, whether or not a plaintiff neighbor is going to suffer a legal agreement, some injury as a result of the project that’s been permitted.

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.

And if there’s no injury, a court does not have a role to play. Courts are not just supposed to strike down governmental decisions because of. they don’t like the decision. So, the question of injury is fundamental to our entire structure of the judiciary, but it’s particularly important in zoning litigation and rulings on standing can reverberate and affect pretty much every development project all around the state from a single-family home in the three-acre zoning area of Sherborn, to large developments in downtown Boston and across the state. So, a change in the law of standing can have a wide-ranging effect. And so, reading the decision would essentially, if it were upheld or stood was going to effectively combine the standing and merits arguments which would eliminate standing as an independent basis under which courts would determine whether they should be hearing cases at all. And so, I [00:08:00] read the decision and had one of those oh, goodness moments and thought that this was really quite risky for the entire way development is done in the Commonwealth. And fortuitously, the project proponents had reached out to an organization called NAIOP Massachusetts, which is the commercial real estate trade group in Massachusetts. And just were looking for some support from the organization. And I’m on the board of the organization and fairly active in it. And when I heard that they had reached out and inquired I used it as an opportunity to reach out to them and say, “Hey, here’s my experience. This decision is really problematic. What if we made a right of trying to get the case before the Supreme Judicial Court, the appeals court case to be reviewed and hopefully can get it overturned?”

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.

Bob: You saw wrong, and you want it to rectify. So, let’s talk about the SJC decision. This case was argued on March 5th, [00:09:00] 2020, just before the pandemic really took hold. Literally one day later, the SJC issued an order in favor of your clients and dismissing the neighbor’s challenge.

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 [00:10:00] clients were pleased. The justice of the Supreme Judicial Court through their questioning, certainly it indicated a skepticism for the reasoning of the appeals court. But I settled in expecting to, I think the Supreme Judicial Court aims for 110 days from a hearing to a decision.

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 [00:11:00] SJC did not rule quickly because of the facts of this particular case. Whether or not my clients could build a large house on a three-acre lot in Sherborn is not something the court would care about. And for that reason, I thought when the case came to me and after the appeals court at issue its ruling on standing, I thought the entire challenge was trying to convince the SJC to take the case in the first place.

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.

The Supreme Judicial Court is very selective in cases they take on further appellate review where the appeals court, the intermediate appellate court, has already ruled. And the greatest effort in the briefing was just making the argument that the [00:12:00] Supreme Judicial Court should take the case in the first place.

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.

So, without the SJC having explained themselves in the decision, I assume that [00:13:00] they were sending a message that not only was the appeals court wrong, but that it’s important to get this right, right away. We don’t have three or four months of greater uncertainty in the ability for the Commonwealth to supply the housing that’s so badly needed.

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.

In those instances, developers go through an extensive [00:14:00] process to obtain variances, basically special dispensation from the zoning laws so that they can do their developments. But that process is long and it’s hard. It requires that the developers go out and, meet with their community, get neighborhoods, support, get political support.

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.

But given that the legal standard for upholding variances in court is so difficult, if after all that work after [00:15:00] you’ve garnered so much support and you’ve eventually obtained your approvals from essentially a political body, the zoning board of appeals. If after all of that an abutter or a neighbor, even somebody who didn’t speak up during this whole process decides that they want to issue a challenge to your development project.

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.

Now you’ve already sort of explained that the appeals court decision could have impacted standing. [00:16:00] I’d like for you, if you could explain where this Murchison decision kind of fits into the overall development process and how it impacts development in general and in the future?

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

Boston does land use planning differently from the other 350 municipalities in the Commonwealth of Massachusetts. It’s not subject to the zoning act, Massachusetts general law chapter 40a. 1924 Boston adopted zoning for the first time. And over the decades has had a process of down zoning the city which means that Boston is adopted dimensional regulations that are more restrictive than the historical development patterns of the city. That means the neighborhoods that we architecturally find most pleasing in Boston: beacon hill, the north end, the south end, Charles town back bay are none of them could be developed under current zoning.

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.

If you have an acre or more. Which is extremely hard to put together an entire acre? There are almost no acres that are just unbuilt on and sitting ready to develop. Often developers need to put together enough land to have an acre. You can do a plan [00:18:00] development area, which is essentially special zoning for a larger swath of development land, but that’s rare.

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.

But that’s just not the case generally in the city of Boston. Particularly [00:19:00] there’s so much landfill that you’re not getting to bedrock, anyways. So, you can’t meet the standard for a variance. And so, Boston does this land use planning by handing out variances, but if anyone objects and appeals to the court, it never meets the standard.

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.

And so, this has a major impact on [00:20:00] our entire economy and what kind of city we want to have. If land use planning is done through variances and you’re a proponent of some kind of project. And if any neighbor can effectively overturn a variance, if they get into court, if they have standing, it compels the project proponent to negotiate with their neighbors, to try to reach an agreement.

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.

And it, it makes development far more expensive and through value engineering, anything that’s architecturally interesting is going to be stripped out. So, you end up getting sort of lowest common denominator [00:21:00] on interesting building and it makes development as a. It can make it tremendously more expensive because for instance, one big complaint is that it’s too hard to park in Boston.

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.

If the law of standing were such that. And we can get more into the reasoning of the appeals court originally in the SJC, overturning it, [00:22:00] but based on the appeals court decision, they would effectively be no more standing as a basis for keeping cases out of the court. And that would have changed this analysis dramatically because in that case, a project proponent would essentially lose a hundred percent of the time, at least in the city of Boston, on the merits on variances. And it would change the entire way these things get negotiated and, the whole basis on which Boston development by variance has done, which is a crazy way to do it in the first place.

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 [00:23:00] unpack in your answer. And I, do want to drill down on a couple of points you made in and bring it back to the Murchison case itself.

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?

Dan: Yeah, I wouldn’t say overcrowding in Boston. I want to draw a distinction between density and overcrowding. I think as used in land use overcrowding is associated with things [00:24:00] that are bad when land is overcrowded historically there were then concerns of disease and fire and pollution and things like that.

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.

[00:25:00] But the notion of standing getting written out by the appeals court I think is exactly right. And their analysis was somewhat reductive. What we had here was what looked like a slam dunk standing argument. I think from the perspective of the project, proponents my clients at the trial court, which is three acres zoning in Sherborn.

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.

My clients had already cleared the land to build their house. [00:26:00] And their house was going to be located approximately 180 feet from the neighbor’s garage through the woods, across the street. And so, this notion that they would be an injury, if there was a house, 180 feet away from a garage at the closest point in the woods just seems like how in the world are they going to prove an injury?

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.

You have to actually be harmed by something, having an impact, perceiving something is not enough. And when I made this argument to Kenner, I was drawing on analysis. I think by Land Court Judge Sands in the Bomba case. The [00:27:00] standing argument by the project, proponent had argued about noise, and it put on evidence that the plaintiff would be able to hear noise from the project.

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.

How are you intrigued by it? Is it so bright that it’s going to keep you up at night? there’s this requirement of proving an actual injury that’s different from just a perception. And in Canada, the court also said that this injury has to be more than diminimous. In fact, the Canada court said that the injury must be substantial [00:28:00] enough for the right to be before the courts.

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.

And the view is important because it meant that she had gone to the property, seeing the property, and looking at the distance between where the house was proposed and where the existing house was. She said, there’s simply no injury here. And when the [00:29:00] neighbors appeal. I think everyone assumed. I wasn’t familiar with the case, but anyone at the time, but anyone who would have looked at the facts of the time would have said the appeals court is gonna, defer to the reason judgment of the trial judge and not just any trial judge, but the Chief Justice of the very court, that’s supposed to have specialized knowledge in land use law.

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.

The requirement in Sherborn was both 250 feet of frontage and 250 feet lot width and so that only comes into play if you have an irregularly shaped lot. And in fact, the Panarella and [00:30:00] Erichsen lot. You can think of it as, an hourglass shape. And my memory of the case is that Sherborn’s practice is to measure lot width at the setback line.

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.

And that’s why the building inspector had issued a building permit. Why the CBA of Sherborn had [00:31:00] affirmed the, all the local officials said this compliance width, lot width so what the appeals court did is it said the Murchisons have an argument about lot width, which we’re not going to opine as to whether it’s the correct argument or not.

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.

And so, if a house is built that otherwise doesn’t comply with the dimension requirements, we’re adding a house that wouldn’t be there and that’s going to add to density. And so, the purpose of dimensional requirement. The appeals court reasoned is effectively to prevent additional density. And so, the court said we need to [00:32:00] defer to the reason judgment of the decision by Sherburne to adopt two dimensional requirements that whose intent is to prevent the overcrowding of land.

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.

Which is a strange way of thinking about it. But I suppose in theory, it’s allowing something to happen that otherwise wouldn’t have happened. So, if that’s the standard, then [00:33:00] everything in every single case, in which the neighbor argues a violation of the dimensional requirements, or for that matter, a use requirement, the use limitation under the appeals court reasoning, they would be saying.

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.

This notion, particularly in, in towns, that when municipalities adopt dimensional requirements, they’re trying to guard against density that will cause injury to neighbors. It’s problematic on multiple levels. One is when town meeting [00:34:00] adopts dementia requirements there’s not alleged, there’s no legislative record of what their reasoning is.

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.

It simply made no sense to say that the purpose of the lot width [00:35:00] requirement was to prevent injuries to neighbors from overcrowding a land. It was just such a reductionist type of argument. You can see how the appeals court got in their head to go in that direction, why do we have dimensional requirements? It’s to protect neighbors. And therefore if that’s what the intent was then that should be a basis for standing. But it overturned, decades of standing jurisprudence. And that’s why the argument was made to the SJC. When I got involved.

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 SJC, as we’ve learned overturned the decision itself. Was more of an affirmation of existing standing law. The decision I don’t think was established too much. That’s new in the law. There are a couple aspects that I’m happy to get into that I think are significant about the Murchison decision, but [00:36:00] by and large Murchison stands for a re articulation or reaffirmation.

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.

In order to develop a single-family home 250 foot [00:37:00] lot width, that’s very large. This to me doesn’t seem tethered in any real or even theoretical way to health, safety, and welfare. So, if that’s the case and especially you pointed it out a couple of times today, especially where zoning like this in particular, single-family zoning has been criticized for really, for decades as contributing to the affordable housing crisis that you mentioned as being harmful to the economy as even contribute contributing to racial and economic segregation in certain area.

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?

And why was it important to prevent overcrowding? Because, we didn’t have modern fire, fire departments, these fires would spread from. Housing complex to housing complex, we didn’t have modern building codes at the time. There were a whole host of reasons why overcrowding and I really want to distinguish that between the term density that you’ve been mentioning before in which, being a member of a planning and zoning board myself and having [00:39:00] participated in the writing of actual bylaws.

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.

Can you challenge them from a constitutional perspective as being, an unreasonable regulation that unconstitutionally deprives your property rights from a way that we order our land use planning? In the Commonwealth and all around the United States it’s highly problematic from the modern perspective, given the crisis that I’ve mentioned in terms of housing, transportation, climate change, as well as really other crises, such as the obesity crisis, it’s [00:40:00] really been shown that suburban land use development patterns of sprawl is probably the single greatest contributor to the obesity crisis that we suffer in the United States because it creates a car dependent society.

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.

That’s problematic. I’m not sure that the courts are the place to redress that I’m not sure that a constitutional challenge to zoning is going to get very far well. I think your analysis that the zoning no longer seems to be tied to health and safety outcomes. It’s so entrenched in America, going back to the Euclid case in 1922 or so in Ohio that I don’t think a constitutional challenge would get traction, but I think you’re asking absolutely the right question.

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.

It means that development happens on large lots, which consumes a lot of land. And so, we’re losing our farms, we’re losing our forest. Instead, if we did this on a regional basis and real money was put into protecting our open spaces, we’d be preserving much more natural space, further out from the city and then encouraging on much smaller, lots, [00:42:00] much more intense development, closer to where the jobs are and closer to public transportation.

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

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