Agenda - Planning Commission - 05/07/2009

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(, I I I I , ) ~'J Zoning Bulletin April 10,20091 Volume 31 No.7 () Harper appealed to the Massachusetts Land Court. Harper argued that, pursuant to a prior state appellate court decision, sections 900 to 901.3 and 1700 of the town's zoning bylaw were arbitrary and capricious and thus in- valid. He said this was because they required the discretionary issuance of a special permit prior to any construction in the relevant zoning district. Those sections of the bylaw provided that only uses that were not detrimental to the district were permitted by a special permit from the ZBA, and that the ZBA had the power to set certain restrictions and conditions. Harper and the ZBA ~ach filed motions for summary judgment. They asked the land court to find thatthere were nQ material issues of fact in dis- pute and to issue sumIIiary judgment in their favor on the law alone. () \"....~/ . . DECISION: Harper's motion for summary judgment denied; ZBA's cross- motion for summary judgment allowed. The court held that the town's zoning bylaw.was valid in that it did not allow the ZBA discretionary authority in issuing special permits. The coUrt eXplained that Massachusetts statutory law, Chapter 40A, S 4', provided that "(aJny zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted." The state appeals coUrt in SCIT, Inc. v. Planning Bd. of Brain tree, 19 Mass.App.Ct. 101, 474 N.E.2d 269 (1984), had interpreted S 4 as a limitation on municipal zoning power. Specifically it had concluded that: "once a zoning district is established with certain uses allowed as of right, a municipal board cannot exercise discretionary author- ity to permit or deny such uses, and any bylaw purporting to authorize such power is void." The coUrt rejected Harper's argument that sections 900 to 901.3 and 1700 of the town's zoning bylaw were invalid because they amounted to that prohibited exercise of discretionary authority since they required a special permit prior to commencing any construction in a particular zoning district. The court acknowledged that pursuaIit to SCIT: a bylaw that required a dis- cretionary special permit and afforded no c'riteria for issuing said permit, was as a matter of law, arbitrary,unreasonabl.e and invalid, HoweveI; here the court found that sections 900 to 901.3 and 1700 of the town's zoning bylaw were more akin to a permissible site plan review. The court found that the town's zoning bylaw did not afford the ZBA discretionary authority to ap- prove or deny a special permit; rather, the bylaw limited the ZBA's authority to .the reasonable regulation of a use if it could be shown that the proposed use satisfied the requirements for the zoning district. See also: SCIT, Inc. v. Planning Bd.'o{ Braintree, 19 Mass. App. Ct. 101, 472 N.E.2d 269 (1984). @ 2009 Thomson Reuters 7 49