Land use practitioners will enjoy reading Chief Justice
Scheier’s recent decision in MLM Realty
Trust v. Moroney, et al (2012WL1392976) April 18, 2012. It appears
as if a group of neighbors in Somerville opposed the division of a parcel of
land into two conforming lots and the construction of a by-right-use three
family residence on one of the lots. After nine months of hearings, numerous
reports from staff and consultants, and an opinion from the Assistant City
Solicitor, the Planning Board emerged from a curious executive session and
voted to deny the application. Justice
Scheier found: “In its decision, the PB articulated
two ‘intractable’ problems—traffic and the impact of the three-unit residential
structure on the historical features of Locus and the surrounding neighborhood.
The traffic concerns are not supported in any way in the summary judgment
record, which establishes that the traffic impacts of the proposed new lot and
use will be negligible. Even read generously, the PB's decision simply
expresses the view that the fact that Lot 2 will no longer be a vacant lot is per
se the intractable problem that can have ‘no reasonable solution.’ ...
The PB's reasoning, adopted by the ZBA, misconstrues site plan case law and
overreaches the authority of the boards under the Zoning Act and the case law
interpreting the Zoning Act, all of which applies to Somerville,
notwithstanding the fact that the City is not subject to the provisions of the
SCL.”
Because there was no evidence that the
proposal would create a traffic problem, the Court determined that the PB’s
finding with respect to traffic “were an error as a matter of law”. And, any concerns
regarding the historical character of the property could have been addressed by
the imposition of conditions of approval.
In reaching the decision, Justice Scheier,
provided a handy summary of the criteria applicable to Site Plan Approval, as
follows:
“In reviewing an application for site
plan approval that concerns an as-of-right use, the scope of the board's review
is narrow. Wolcott–Marshall, Inc. v.
Town of Rutland, 7 LCR 119, 121 (1999)
(citing Prudential Ins. Co. v. Bd.
of Appeals of Westwood, 23 Mass.App.Ct. 278,
281–82 (1986)). If the proposal meets all applicable zoning ordinances or
by-laws, the board must approve the site plan application, but can impose
reasonable terms and conditions on the proposed use. Prudential Ins. Co., 23 Mass.App.Ct. at 281–82 (quoting SCIT, Inc. v. Planning Bd.
of Braintree, 19 Mass.App.Ct. 101, 105 n. 12 (1984)); see
also Castle Hill Apartments Ltd.
P'ship v. Planning Bd. of Holyoke, 65
Mass.App.Ct. 840, 841 (2006) (‘The use being one permitted as of
right in the relevant zoning district, the board was limited to imposing
reasonable conditions on the use.’); Quincy v. Planning Bd. of
Tewksbury, 39 Mass.App.Ct. 17, 21–22 (1995) (‘[W]here
the proposed use is one permitted by right the planning board may only apply
substantive criteria consistent with Prudential Ins. Co. of America v.
Board of Appeals of Westwood, ... (i.e., it may impose reasonable terms
and conditions on the proposed use, but it does not have discretionary power to
deny the use).’). Only if the ‘problem [cited by the board] was so intractable
that it could admit of no reasonable solution’ is the board allowed to deny a site
plan application. Prudential Ins. Co., 23 Mass.App.Ct. at 283.”
It is unfortunate if the PB caved to pressures from the
neighborhood and chose to disregard the advice of counsel and disregard the
recommendations from City staff. The applicant had to incur legal fees and
spend about nineteen months in Land Court, after nine months of hearings before
the PB and a trip to the ZBA. This is not a good example of how Massachusetts
is supposedly a good place to do business, but it is interesting to see that
parochial decision making by municipal boards is not confined to the leafy
suburbs.
PAUL F. ALPHEN,
ESQUIRE
BALAS, ALPHEN & SANTOS, P.C.
paul@lawbas.com
http://www.lawbas.com
paul@lawbas.com
http://www.lawbas.com
