Agenda - Planning Commission - 01/09/2014

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November 25, 2013 Volume 7 1 Issue 22 Zoning Bulletin in planned construction projects; approximately 12,243 jobs; $737 mil- lion in labor income for community residents; and a 10-year economic impact of approximately $1.57 billion. In July 2009, individuals who owned property that abutted the prop- erty owned by BC (the "Abutters"), which was the subject of the IMP, filed a complaint in superior court against, among others, the Zoning Commission and the BRA. BC intervened in the action. Among other things, the Abutters argued that Article 29 of the Massachusetts Decla- ration of Rights ("art. 29") applied to the IMP process because it was an adjudicatory process. They contended that the Zoning Commission violated art. 29. Article 29 states: "[i]t is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpreta- tion of the laws, and administration of justice. It is the right of every citi- zen to be tried by judges as free, impartial and independent as the lot of humanity will admit." Article 29 has been interpreted to extend beyond judges "to all persons authorized to decide the rights of litigants." The Abutters maintained that IMPs were not a form of zoning amendment, but rather were akin to special permits and variances. As such, they contended that the IMP approval process was adjudicatory, and subject to art. 29's requirements of "impartial and independent" review. The Abutters alleged that, here, the review of BC's IMP violated art. 29 as it was "infected with bias and ex parte communications." They alleged that: (1) a zoning commission member was a lobbyist hired by BC to work on property issues, master plan- ning, and a campus master plan during its IMP approval process; and (2) the BRA, the zoning commission, and BC communicated outside the public meeting process to reach an agreement to approve the IMP. Eventually, finding no material issues of fact in dispute, and decid- ing the matter on the law alone, a superior court judge issued summary judgment for the Zoning Commission, BRA and BC. The judge held that the IMP approval process was a legislative act, not an adjudicatory proceeding, and thus art. 29 did not apply. The Abutters appealed. DECISION: Judgment of superior court affirmed. The Appeals Court of Massachusetts held that art. 29 did not apply to the City's IMP approval process. In so holding, the court disagreed with the Abutters' argument that BC's IMP was similar to the special permit process, which was adjudicatory in nature. The court found that IMPs were "created specifically to address the shortcomings that the special peuiiit process 10 © 2013 Thomson Reuters