Wednesday, August 26, 2015

APPEALS COURT DECISION EMPOWERS SPECIAL PERMIT GRANTING AUTHORITIES WITH THE ABILITY TO DENY PERMITS ON SUBJECTIVE GROUNDS

In 2007 the applicant/Plaintiff Buccaneer Development, Inc applied for a special permit to build a “retirement community,” the minimum requirements for which are set forth in § 9.6 of the Town of Lenox by-law. The proposed project satisfied all of the special provisions set forth in that section. And the Appeals Court agreed with the trial judge's conclusion that “the density of the proposed project is well within the requirements of Section 9.6,” and that the board had no basis to deny the special permit under the square footage, acreage, frontage, or setback provisions included in that section. Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, No. 14-P-855, 2015 WL 4725043, at *2 (Mass. App. Ct. Aug. 11, 2015)
Nevertheless, the Appeals Court on August 11, 2015 upheld the Land Court’s decision that the denial by the Lenox Zoning Board was erroneous.
The Appeals Court stated that the Board’s decision can only be disturbed if it was unreasonable, whimsical, capricious or arbitrary.
“However, ‘[e]ven if the record reveals that a desired special permit could lawfully be granted by the board because the applicant's evidence satisfied the statutory and regulatory criteria, the board retains discretionary authority to deny the permit.’ Davis v. Zoning Bd. of Chatham, 52 Mass.App.Ct. 349, 355, 754 N.E.2d 101 (2001). ‘[T]he decision of the board can only be disturbed ‘if it is based ‘on a legally untenable ground’ ... or is ‘unreasonable, whimsical, capricious or arbitrary.’  Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass.App.Ct. 483, 486, 395 N.E.2d 880 (1979), quoting from Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277, 244 N.E.2d 311 (1969).” Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, No. 14-P-855, 2015 WL 4725043, at *2 (Mass. App. Ct. Aug. 11, 2015)
The Court determined that the denial based on broad subjective grounds was within the Board’s authority.

“Nonetheless, the three other criteria in § 6.1.1 of the by-law specifically require the board to consider more subjective factors and not to grant a special permit unless it finds that the proposed use ‘(a) [i]s ... in harmony with [the by-law's] general intent and purpose; (b) [i]s essential or desirable to the public conveniences or welfare at the proposed location; [and] (c) [w]ill not be detrimental to adjacent uses or to the established or future character of the neighborhood.’ The board's denial of the special permit was firmly grounded in its assessment that the proposed use failed to meet these criteria……’[P]articularly where the judge conducted a view,’ we are reluctant to disturb her findings. Bernier v. Fredette, 85 Mass.App.Ct. 265, 275, 8 N.E.3d 769 (2014).” Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, No. 14-P-855, 2015 WL 4725043, at *3 (Mass. App. Ct. Aug. 11, 2015) 

The decision gives greater authority to special permit granting authorities to deny permits even when the applicant has met the objective requirements. Again, as usual, note that the process took over eight years to reach this point.

Paul F. Alphen, Esquire

Alphen & Santos, P.C.

Westford, MA

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