The various approvals, permits, orders of conditions, and the like that may be required to proceed with work on a given project can seem daunting at times. And when a project’s proposed use is not automatically authorized under a town or city’s existing zoning regulations, project stakeholders may have to pursue special permits, which are typically subject to discretionary review by the local zoning board. So what happens if a zoning board exercises its discretion to deny a special permit for an otherwise permitted use? A recent decision by the Appeals Court confirms that there are limits on the discretionary authority of a zoning board.
The decision in Sunpin Energy Services, LLC vs. Zoning Board of Appeals of Petersham arose out of a special permit application for a solar project, which was an expressly permitted use under the applicable zoning bylaws. In addition, applicable state regulations limited the ability of the zoning board to unreasonably restrict solar energy projects. Although two of the three members of the board voted to approve the special permit, one member believed that the proposed use was not the most appropriate use of the land because it required tree removal. The absence of unanimous approval meant that the application was denied.
The Appeals Court found that the zoning board’s decision to deny the special permit exceeded the limits of the board’s discretion. According to the Appeals Court, the zoning board abused its discretion by imposing its own preference for a different use of the property at the expense of due regard for the bylaws and applicable regulatory framework. Although courts typically send cases like this one back to the zoning board for a re-determination, the Appeals Court followed a different approach here. The court ordered the zoning board to issue the special permit after considering what, if any, reasonable conditions to place on the proposed use. This is a rare but appropriate outcome where remanding the decision to the board is considered futile or will only delay the inevitable.
For many project stakeholders, this decision represents a welcome backstop to protect against what can sometimes feel like the limitless discretion and deference given to permitting authorities. This decision confirms that the members of permitting authorities may not exercise their discretion whimsically by relying on ambiguous policy concerns as a pretext for imposing their own preferences to deny otherwise permissible uses. Depending on the facts and circumstances, parties aggrieved by inappropriate denials of otherwise permitted uses may have a compelling argument to challenge such decisions in court.
