HomeMy WebLinkAbout9.15.25 Memo on Standing to PlanningIN MEMORANDUM
To: James Kupfer, Director of Planning
Cc: Karen Nober, Town Attorney; Brian Florence, Building Commissioner
From: Allison Cogliano, Assistant Town Attorney
Date: September 15, 2025
Re: Lack of Standing – Appeal by 25 Falmouth Road LLC of Building Permit BLDC 22-227
I. INTRODUCTION
25 Falmouth Road LLC (“Appellant”) has appealed the issuance of Building Permit BLDC
22-227, dated September 17, 2024, for properties at 95 and 123 Falmouth Road, Hyannis
(“Subject Properties”). The Appellant invokes G.L. c. 40A, and Barnstable Zoning Ordinance
§240-88.
The Appellant claims standing because its property, an Audi dealership, is located in the same
Groundwater Protection District as the Subject Properties. Although over 500 feet away, the
Appellant asserts fear of groundwater contamination and alleges disparate treatment, claiming it
has obtained the proper permits while the Subject Properties have not.
As explained in detail below, Appellant is not a “person aggrieved” within the meaning of
G.L. c. 40A, §§13 and 17, and therefore lacks standing to appeal.
II. LEGAL STANDARD
Standing under G.L. c. 40A requires a showing of credible evidence of a particularized injury
to a legally protected interest. See Marashlian v. ZBA of Newburyport, 421 Mass. 719, 721-22
(1996). Speculative fears, generalized grievances, or policy disagreements do not suffice.
Abutters within 300 feet are entitled to a rebuttable presumption of standing pursuant to G.L. c.
40A, §11. However, properties beyond 300 feet must affirmatively demonstrate standing with
credible evidence. Zoning ordinances may identify protected interests, but under Sweenie v. A.L.
Prime Energy Consultants, 451 Mass. 539 (2008), the existence of a protected interest in the
ordinance cannot, by itself, confer standing; individualized injury is still required. See
Standerwick v. ZBA of Andover, 447 Mass. 20 (2006) (speculative or conclusory claims are
insufficient); Kenner v. ZBA of Chatham, 459 Mass. 115 (2011) (injury must be individualized
and substantiated).
III. APPLICATION TO THIS APPEAL
The first issue at hand is whether the Appellant has a rebuttable presumption of standing. The
Appellant’s property at 25 Falmouth Road is over 500 feet from the Subject Properties, well
beyond the 300-foot statutory presumption zone. Therefore, the Appellant bears the full burden
of proving standing.
The Appellant provides no expert report, testing, or data suggesting contamination of its
property. Its claim rests on generalized fear of groundwater pollution. Under Sweenie v. A.L.
Prime Energy Consultants, generalized fear of groundwater contamination is insufficient without
individualized, credible evidence of impact. The Appellant has not demonstrated that issuance of
the permit affects its property value, use, or enjoyment in any way. A theoretical risk of
contamination, unsupported by evidence, is not enough. Finally, the Appellant’s claim that it has
proper permits for auto sales and service while the Subject Property does not is a zoning
enforcement dispute, not an individualized injury. Standing cannot be based on claims of unequal
treatment or enforcement unless tied to a direct impact on the Appellant’s property rights – which
has not been shown here.
IV. CONCLUSION
25 Falmouth Road LLC is not an abutter, does not own property within 300 feet of the
Subject Properties, and has failed to present credible evidence in support of a particularized
injury to a protected property or legal interest. Its generalized fears of groundwater
contamination and claims of disparate treatment do not establish aggrievement under G.L. c. 40A
or Barnstable Zoning Ordinance §240-125(B)(1)(a), which mirrors c. 40A and requires a “person
aggrieved” to appeal in order for the ZBA to have jurisdiction. Accordingly, the Appellant lacks
standing to challenge Building Permit BLDC 22-227, and the appeal should be dismissed for
lack of jurisdiction.