Agenda - Planning Commission - 01/05/1999

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Page 8 -- December 24, 1998 Z.B. Special Permit m Must board issue permit because its denial didn't specify reasons? Citation: Board of Aldermen of Newton v. Maniace, Appeals Court of Massachusetts, No. 97-P-1774 (1998) Developers wanted to build a grocery store in Newton, Mass. They applied to the city board for a special permit. The board's land use committee held a public hearing to consider the de- velopers' application. The committee recommended that the board approve the application with certain conditions. After lengthy debate, the board denied the developers' application. The vote was 14 in favor of the permit and nine against, but special permits needed a two-thirds vote to pass. When the board voted, it had a four-page draft order outlining the reasons for its denial, but the victorious minority withdrew that draft when they filed the decision with the city clerk. This meant the decision filed with the city clerk was an almost verbatim tracking of the committee's recommendation in favor of the application, except for the vote denying the application. State law required any local authority considering a special permit applica- tion to issue its decision within 90 days after the public hearing, or the permit would be deemed granted. The statute also required the board to issue a detailed record of its proceedings "setting forth clearly the reasons for its decision." The developers appealed the board's decision, but before the appeal was heard, the 90-day time period for final action elapsed. The developers notified the city clerk that the board had approved their special permit request. The board sued the developers, claiming the decision it filed with the city clerk was a "final action" as required by the statute because it included a record of the board's vote. The court ruled for the developers, finding they were entitled to the permit. The board appealed. DECISION: Affirmed. The developers were entitled to a special permit with the conditions listed in the land use committee's recommendation. The board correctly argued that a decision to deny a special permit applica- tion didn't require detailed findings. But for the board's decision to be a final action as contemplated by the statute, the board had to provide the applicant with the reason for the denial so the applicant could determine whether to ap- peal the board's decision. If the board's vote alone was enough to satisfy the statute, any appeal would become an expensive, time consuming, empty gesture requiring the matter to be returned to the board for a statement of the reasons showing the denial was based on proper grounds all of which could be followed by yet another appeal. see also: Sheav. Board of Aldermen of Chicopee, 434 N.E. 2d 214 (1982). see also: Btdlding b~spector of Attleboro v. Attleboro Landfill I~c., 423 N.E. 2d 1009 (1981).