So Your Special Permit Has Been Denied: Now What?

Though the special permit process is governed by both the Massachusetts Zoning Act (M.G.L. c. 40A) and local zoning bylaws and ordinances, the procedure for appeals of special permit decisions are set forth in M.G.L. c. 40A § 17.

When a special permit application has been denied by a municipal board acting as the special permit granting authority, careful attention must be taken regarding proper venue, statute of limitation for filing the appeal, providing notice and other procedural requirements. Failure to follow these requirements may result in losing the right to advance the appeal and dismissal of the case. Below are some of the most important early considerations that should be taken into account when appealing a special permit that has been denied.*

1. Statute of Limitations for Filing Appeal. Under M.G.L. c. 40A § 17, appeals must be filed within twenty (20) days after the ZBA’s decision has been filed with the office of the city or town clerk. This is where it becomes very important for the applicant to be proactive and pay attention to when the decision is filed by the ZBA. Depending on the municipality, this may range from mere days to more than a week between when the ZBA renders its decision and when it actually files the written decision with the clerk.
2. Venue. When it comes to where to file the appeal, the applicant has a few options. Most attorneys prefer to file in either the Land Court or the Superior Court in the county where the land is located. For projects involving 25 or more dwelling units and/or the alteration or construction of ≥ 25,000 SF of gross floor area, appeals may be made to the “permit session” of the Land Court. Each of these courts has their own separate list of pros and cons that should be considered before filing. Other possible (but rarely chosen) courts include the Housing Court serving the county, region or area where the land is located, or (except for Hampden County) the district court within the district where the land is located.
3. Notice. M.G.L. c. 40A, § 17, has very strict notice requirements which include providing a copy of the complaint and notice of the lawsuit to the city or town clerk within twenty (20) days after the ZBA’s decision was filed with the clerk.
4. Contents of the Complaint. The complaint must name all statutorily required parties, including (but not limited to) all members of the ZBA (or SPGA), including their addresses. M.G.L. c. 40A, § 17, also sets forth some specific allegations that must be made within the complaint, and also requires that a certified copy of the ZBA’s decision be attached to the complaint. Additionally, each court will also have its own civil action cover sheet that must also be filed with the complaint.
5. Service of the Complaint. Unlike other types of civil actions, M.G.L. c. 40A, § 17, allows service of the complaint (among other required documents) to take place by certified mail to all named defendants. The certified mail must be sent within fourteen (14) days after filing the complaint-this is much less time than other types of civil actions. Although the plaintiff does not have to provide proof that the defendants actually received notice of the lawsuit, he must file an affidavit of service with the court within twenty-one (21) days after filing the complaint.

In sum, it is crucial that the special permit applicant pay very close attention to when the ZBA files its decision with the city or town clerk so that he has sufficient time to retain counsel, who can then ensure that all of these steps are taken in a timely manner that preserves the applicant’s right of appeal.

* This article does not address other types of zoning appeals, such as appeals brought by opponents to the grant of a special permit, appeals based on failure for the ZBA to act, appeals based on procedural deficiencies at the local level (i.e. lack of public notice), or appeals of special permits awarded or denied under the federal Telecommunications Act of 1996, each of which may have some of the same or altogether different procedural requirements.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.