Agenda - Planning Commission - 05/03/2007

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April 1 r 20071 Volume 1 I No.7 -' ing permits. The court noted that the by-law awarded the board "un- bridled discretion" with regard to issuing permits. The board's decision was voided. Butera appealed. On appeal, Butera argued that there were "ample" standards governing the by-law and that, regardless, the court should have presumed that the by-law was valid. Essentially, Butera argued that the court should have given deference to the by-law and the zoning board's interpretation of it. Decision:. Affirmed. The appeals court found that the case law supported the decision of the lower court. Specifically, past cases had established that "[a ]uthority of a board of appeals 'to act on applications for special permits for ex- ceptions to tj::te zoning by-law [could] not leave the decision subject to the 'untrammeled discretion' ... of the board." In addition, the court noted that overly vague provisions that del- egated authority to an administrative agency created an environment -:0 where boards could make arbitrary and capricious decisions-which violated the due process clause of the 14th Amendment. Although, on the other hand, the standards for a board's discretion did not have to be extraordinarily detailed, there had to be some language in a by-law vest- ing a board with decision-making power that specified the criteria upon which the board had to base its decisions. Butera argued that such standards existed in another part of the by- law. That section stated: "... any building or structure or any use of any building, structure or premises which [was] injurious, obnoxious, offen- sive, dangerous, or a nuisance to the community or to the neighborhood through noise, vibration, concussion, odors, fumes, smoke, gases, dust, harmful fluids or substances, danger of fire or explosion, or other objec- tionable feature detrimental to the community or neighborhood health, safety, convenience, morals or welfare, [was] prohibited." Butera argued that this language, by defining uses that were not permitted, effectively allowed all other uses. The court was not persuaded by this argument. illtimately, the appeals court found that the by-law lacked sufficient standards to guide the board's exercise of authority fairly; the decision of the lower court was affirmed. See also: MacGibban v. Board of Appeals of Duxbury, 356 Mass. 635, 255 N.E.2d 347, 1 Env't. Rep. Cas. (BNA) 1122 (1970). 9 47