Agenda - Planning Commission - 11/01/2007

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Zoning Bulletin not beYOJld the scope of authority of the ... Board; [were] not arbitrary, (~ capricious, unreasonable or contrary to law; and [were] not legally en- titled to be annulled." The neighbors appealed. DECISION: Affirmed. Generally, an administrative decision by a zoning board could not be overturned by a court unless it was "based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary." In this case, the appeals court reviewed the evidence de novo, or as if it was being pre- sented for the first time, to determine if the board had acted improperly. The burden of proving that, however, laid with the neighbors; deference was given to the board's presumed expertise on zoning matters. The plaintiffs argued that the decision of the board allowing the spe- cial permits had to be reversed because the board did not interpret the by-law to require consideration of the effect of the construction on en- dangered or protected species or their habitats. However, the appeals court noted that the D~ a state agency with the necessary expertise to undertake that technical inquiry, was expressly tasked with this respon- sibility by a general law, and that agency concluded that the allowance of the special permits in this case would not have a negative impact on .-.'") any protected species under the Endangered Species Act. Importantly, though, nothing in the relevant by-law provisions even required such consideration. In fact, the provisions did not even men- tion "protected species" or "priority habitats." The absence of such specific language was made more significant by the fact that this kind of consideration was required elsewhere in the zoning by-law-in sections addressing specific areas that were of particular environmental concern to the town. The court noted that~ if the by-law had intended for such a review, it would have been listed among the requirements for granting a special permit. " The decision of the land court was affirmed. 12 86 ) , i ; i i I IiI ! I 1 1 I I I i i I I ! 1 I i I I \ I I I i i i i I I ;