CPTC: Fair and Defensible Land Use Decisions
Presented by Barbara St. Andre on Dec. 2, 2021.
To survive legal challenges, decisions must be sound, well-reasoned, and defensible. They need to include findings of fact and legal conclusions.
Why go through the trouble to prepare defensible decisions? They help to build public confidence, avoid litigation, show transparency, and contribute to consistency, objectivity, and fairness.
Filing process. Special permits are filed with the city or town clerk. Of course, it's helpful for the applicant to work with town staff prior to filing, to ensure that the application is consistent and complete, and to provide staff with the opportunity to point out potential issues. The town clerk will timestamp the application, and that provides the date and time of filing. The clerk notifies the special permit granting authority (SPGA), and the SPGA may notify other boards.
Variance filings are similar. The variance application is filed with the town clerk who will notify the ZBA.
Applications can be withdrawn without prejudice prior to the first public advertisement. Once a hearing has been publicized, applications can only be withdrawn with the approval of the SPGA.
Administrative appeals (e.g., appealing the decision of the building inspector) must be made within 30 days of the decision. The petitioner will file with the ZBA and the officer whose decision is being appealed. The officer must provide the ZBA with a copy of the case file related to the application.
Public Hearing Notices. Hearing notices must be published twice in a local paper, posted at the town hall, and sent to parties in interest. Hearings must be opened within 65 days of the application submission.
Parties of interest generally include abutters, abutters to abutters within 300 feet, land owners across the street, the planning board, and planning boards in abutting jurisdictions. With respect to "abutters to abutters within 300 feet", the "300 feet" modifies "abutters to abutters". Not everyone within 300 feet is assumed to be a party of interest. That said, there's no harm in sending notice to additional parties.
Hearings must follow the open meeting law. That means publishing an agenda 48 hours in advance, and including the date, time, and place of the hearing.
Notices should include the date, time, and place of the hearing, the applicant's name, the property address (or description of where it's located), the subject matter, and the nature of the action or relief being sought.
Preparation for a public hearing includes publishing legal ads, mailing notices to parties in interest, and making hearing materials available to the board. Make sure the application is complete, and the venue is large enough for the expected audience.
MGL Chapter 39 Sec 23D is the Mullen Rule. If a municipality has accepted this legislation, a board member can miss one hearing and still vote. The board member must certify in writing that they've reviewed a recording or transcript of the hearing they missed. Reviewing minutes is not sufficient.
When opening a public hearing, don't assume that people know how the process works. Start by reading the legal notice and explaining the procedures.
During the hearing, set fair time limits for public testimony. Make sure everyone is heard respectfully. If not all of the attendees can fit into the hearing room, reschedule in a larger venue. Try to make audio or video recordings. Keep clean records of the proceedings and make the publicly available.
Be careful with humor during public hearings. You want members of the public to feel like the board is taking its job seriously.
Meeting minutes have to indicate all votes held, and must be posted in a timely manner.
Boards can close public hearings with a majority vote, and should announce votes to close.
Question: If a board has to reschedule a hearing due to large attendance, do they have to re-advertise it as well?
Answer: No, the board just needs to continue the hearing to a specific date and time.
Question: Can members of the public call in to give testimony?
Answer: Yes, as long as the board agrees to this, and members of the public can hear the person calling in.
Boards can leave a hearing open while they deliberate their decisions. This can be a useful way to allow continued input from the public and applicant, especially when there are conditions involved.
Special permit decisions require a super-majority vote. That means three members in a three-member board, four members in a five-member board, or two-thirds in boards with more than five members. Only members who've attended the hearings may vote.
For special permits, the SPGA must vote and file their decision within 90 days. Decisions are filed with the town clerk, and the clerk's stamp serves as the date and time of filing. Failure to file in time can lead to a constructive grant. There is a provision that allows hearing deadlines to be extended via mutual agreement of the board and applicant.
After the decision is filed, the municipality must mail all parties in interest to inform them that a decision has been filed. This mailing must include instructions for appeal, and the deadline for appealing. Applicants need to be provided with a certified copy of the decision, for filing with the land registry. The appeal period is 20 days, and appeals must be filed with the town clerk.
Special permits must be recorded, and may be exercised within the appeal period at the applicant's risk. Special permits lapse if not exercised within three years. The three-year period does not include time to determine an appeal.
Variance decisions also require a super-majority vote. The ZBA must vote within 100 days and file a decision within 14 days. Decisions are also filed with the town clerk. As with special permits, failure to meet statutory deadlines may result in a constructive grant. Notice of the decision must be mailed to all parties in interest, and include the deadline for filing an appeal. The clerk can certify whether or not appeals have been filed.
Variance decisions must be recorded, and lapse if not exercised within one year. The one-year deadline may be extended by up to six months, by written request to the zoning board. The one-year deadline doesn't include any time taken to determine an appeal.
Administrative appeals (like reversing the decision of a building inspector) require a super-majority vote. The board must make a decision within 100 days and file within 14. Again, missed deadlines could lead to a constructive grant. See MGL Chapter 40A Section 14 for further details.
Tips. Remain objective. When in doubt, ask about potential conflicts of interest. The state Ethics Commission can help with this.
Don't discuss official business on social media. Although social media is a semi-public forum, it's not a public hearing.
Use a separate municipal email for official business.
Don't take evidence outside of public hearings. If a member of the public talks to you outside a public hearing, you should summarize that conversation on the next hearing night; say who you spoke with and what was said.
If you receive email about a case at your personal email address, send a copy to your town account.
In general, the more transparent you are, the better.
Deadlines are very important, and failure to meet them may result in constructive grants. See sections 9, 11, and 15 of Chapter 40A for information about the constructive appeal process.
Findings of Fact and Legal conclusions. Findings should relate to the applicable statutes and local bylaws. Say how the statues and bylaws are satisfied (or not).
It's helpful to include views of the property in decisions. If board members do site visits, it's useful to have this information in the record.
It's useful for boards to take a vote on findings of fact, and a separate vote on the decision. Findings of fact should be based on baseline details, local zoning criteria (and how they're satisfied), statutory criteria (and how they're satisfied), and familiarity with local conditions.
Decisions should be written so that someone who's unfamiliar with the case can understand what took place.