Zoning Litigation: Special Permits
Under local zoning bylaws and ordinances, many structures and uses of land require a special permit. Special permits must be obtained from the special permit granting authority (SPGA) for the municipality, typically the zoning board of appeals, or, for some uses, the planning board. To request a special permit, landowners must file a petition with the appropriate SPGA. After a public hearing process, the special permit will either be granted or denied by the SPGA.
The Massachusetts Zoning Act, G.L. c. 40A, § 9, provides the statutory framework for granting or denying special permit applications. Section 9 requires the SPGA to make a detailed record of its proceedings and to set forth clearly the reason for its decision. The Legislature has long bestowed broad authority on cities and towns to regulate the use of land through various zoning enactments. Article 89 of the Amendments to the Massachusetts Constitution, ratified in 1966 and known as the Home Rule Amendment, provides that “[a]ny city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court.” As such, cities and towns across the commonwealth have individualized special permit requirements.
Challenges to Special Permits
Where an approved special permit is challenged by an appeal, or if a special permit application is denied, our attorneys at Phillips & Angley analyze the SPGA’s findings of fact and legal conclusions, and we research and assess relevant case law and statutory and regulatory criteria to advocate for our client’s rights. Where appropriate, we can defend against or launch an appeal on our client’s behalf.
When May an Appeal be Pursued?
Only “persons aggrieved” have the right to appeal zoning decisions. Part of our representation includes an analysis of legal “standing” – that is, the right to participate in an appeal. Where a challenge to standing is available, it is sometimes appropriate to seek a dismissal of an appeal without addressing the merits of the case.
With decades of experience in zoning and land use law and real estate law to inform us, we are properly positioned to handle the appeal of your special permit, variance or site plan approval. We represent clients before the Land Court, the Superior Court and the Massachusetts Appeals Court, as well as local boards and administrative agencies.