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Site Plan Review and Avenues for Appeal: Unanswered Questions.

One of the most vexing issues involving zoning and land use practice in Massachusetts is how site plan review decisions, rendered by local planning boards, are appealed. In fact, we were recently asked by Mass. Lawyers Weekly to comment on this topic, as well as a recent Land Court decision on the same.

On August 19, 2019, Judge Speicher of the Land Court issued a decision on cross motions for judgment on the pleadings, in an improvidently filed G. L. c. 249, § 4 certiorari action seeking direct review of site plan approval issued by the Rockland Planning Board. See Corner v. Forest Delahunt Dev., LLC, Land Court Docket No. 18 MISC 000316 (HPS), Decision on Cross Motions for Judgment on the Pleadings. At the outset, Judge Speicher remarked that "Massachusetts courts have been struggling to fit the square peg of site plan review into the round hole of G. L. c. 40A since 1970. This case is but the latest example of that struggle, and the result is predictably unproductive and inefficient for the parties on both sides of the case."

In Corner, the project proponent had received special permits, a variance and site plan approval to build a 103,000 square foot "sports complex" for skating and hockey, with room for 1500 spectators and a restaurant, at a 41.4-acre site (the "Project"). The special permits and variance for the Project are also the subjects of other pending appeals in the Land Court.

On April 24, 2018, after the applicant had received the necessary special permits and variance, the Rockland Planning Board voted unanimously and issued a decision to approve the site plan for the Project, under the Rockland Zoning Bylaw's administrative site plan review provisions. The Rockland Zoning Bylaw does not provide a direct right of appeal of site plan review. The Plaintiffs, in Corner, however, attempted to bring a direct appeal of that decision via G. L. c. 249, § 4 & G. L. c. 231A, § 1.

As Judge Speicher properly held, this was not the proper route to appeal the site plan review decision of the Rockland Planning Board. Under the Appeals Court's decision in Dufault v. Millenium Power Partners, L. P., 49 Mass. App. Ct. 137, 139-140 (2000), the appropriate way for an abutter to appeal administrative site plan approval is, first, through an administrative appeal of the building permit that is issued pursuant to that site plan approval: "'An approval after site plan review, when required in connection with the issuance of a building permit, is not a final action, but only a prerequisite to the grant of the permit. The Appeals Court has said, we think correctly, that the right of an aggrieved person to appeal a local planning board's site plan review decision arises only when the building permit for the proposed project is issued or denied by the building inspector.'" Id. at 141-142, quoting St. Botolph Citizens Comm., Inc. v. Boston Redevelopment Authy., 429 Mass. 1, 9 (1999), citing Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17, 20-22 (1995) & McDonald's Corp. v. Seekonk, 12 Mass. App. Ct. 351, 353 (1981). Accordingly, Judge Speicher was left with no legal choice other than to dismiss the action.

However, as Judge Speicher also observed, "[i]f a bylaw specifically provides for a G. L. c. 40A, § 17 appeal directly from the decision of the planning board, that specification of a direct appeal will be honored." Indeed, an unpublished decision from the Appeals Court and all trial-level decisions of which we are aware hold that direct appeals of administrative site plan review decisions are permissible, where local bylaws provide for such a right. Nonetheless, while there are many persuasive authorities for the proposition that a municipality can create a direct right of appeal, pursuant to G. L. c. 40A, § 17, of site plan approval decisions, no binding authority has sanctioned this approach, making exception from the rule articulated in Dufault, supra.

As Judge Speicher aptly remarked, this "hodge-podge of approaches taken by municipalities to site plan review is likely not a result of their desire to tailor their bylaws to their individual needs. Rather, in adopting site plan review bylaws, municipalities appear to be struggling with how best to put together a complicated tool for which they were given no assembly instructions. The problem cries out for a legislative solution in the form of an amendment to G. L. c. 40A providing municipalities with a standard procedure and appellate path for review of site plans. Lacking such instructions, municipalities like Rockland, and developers and abutters, like those in this case, are left with an inadequate tool for which the courts can offer tape and baling wire but no real fix."

Nevertheless, what the Corner decision and Judge Speicher appear to overlook is the mischief that also can attend direct rights of appeal of administrative site plan review decisions. Even though there are non-binding decisions that support the authority of cities and towns to create direct rights of appeal of administrative site plan review decisions, even among these decisions, we are unaware of one that stands for the proposition that such a municipally-created right of appeal is to the exclusion of the appeal rights recognized in Dufault under the Zoning Act. Thus, it is an open question whether abutters may have the right to attack local site plan review decisions on two fronts; an outcome that is generally frowned upon by the appellate case law interpreting the Zoning Act.

In addition, the review that planning boards undertake on site plan review substantially overlaps with what building inspectors review, such as, for instance, whether a project complies with all zoning requirements. So, even if a direct right of appeal of administrative site plan review were an exclusive remedy, in practical reality, an abutter would be able to raise the same issues through an administrative appeal of the ultimate issuance of the building permit, in any event. Thus, it would appear that forcing abutters to exhaust their administrative remedies, and the unitary right of appeal of a building permit as set forth in Dufault, is preferable. This is so because, in meritless appeals, exhaustion of administrative remedies raises abutter transaction costs and, in claims that have merit, it allows local zoning boards to fix mistakes before disputes reach the courts. There are reasons why people should be forced to eat their exhaustion spinach.

Finally, on a substantive level and as cited by Dufault, supra, in its reasoning, the standard for review on appeal of an administrative site plan approval of an as-of-right use is nearly, per se, insurmountable for an abutter; local planning boards can condition these projects, but they are, in essence, prohibited from denying approval. See id. at 139. Thus, on the merits, the abutter appeal right is almost entirely notional, so what would be the purpose of preserving that right of appeal? The practical impact of this almost purely-abstract right of appeal would be to create an unnecessary, additional pressure point for development. The lack of necessity of the right of appeal is demonstrated by the other litigation associated with the Corner decision itself; the same abutters brought appeals of the special permit(s) and variance(s) that the project proponent also received. And, all things being equal, the abutters stand a good chance of overturning the variance(s), given the extremely-difficult statutory standard for this type of zoning relief. In other words, there is no question that these abutters will have their day in court.

But, in the final analysis, the foregoing demonstrates how complicated and labyrinthine appeals of local zoning decisions can be, and why its important to engage counsel who is conversant with this complexity and nuance. Even for those who know this area well, it can be a challenging mine field.

Written by Nicholas P. Shapiro, Esq. on behalf of Jeffrey T. Angley, P.C

Copyright (c) 2011-2019 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for informational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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