I provided a teaser to this discussion in my previous post. The Land Use Partnership Act includes a proposal to limit appeals of subdivision approvals. The exact wording is:
2) Limitations on appeals.
Modify the first paragraph of Section 81BB of Chapter 41 as follows:
Section 81BB. Any person, whether or not previously a party to the proceedings, or any municipal officer or board, aggrieved by a decision of a board of appeals under section eighty-one Y, or by any decision of a planning board concerning a plan of a subdivision of land, or by the failure of such a board to take final action concerning such a plan within the required time, may appeal to the superior court for the county in which said land is situated or to the land court; provided, that such appeal is entered within twenty days after such decision has been recorded in the office of the city or town clerk or within twenty days after the expiration of the required time as aforesaid, as the case may be, and notice of such appeal is given to such city or town clerk so as to be received within such twenty days. The court shall hear all pertinent evidence and determine the facts, and upon the facts so determined, shall annul such decision if found to exceed the authority of such board, or make such other decree as justice and equity may require. The foregoing remedy shall be exclusive, but the parties shall have all rights of appeal and exceptions as in other equity cases. A complaint by a plaintiff challenging a subdivision approval under this section shall allege the specific reasons why the subdivision fails to satisfy the requirements of the board’s rules and regulations or other applicable law and allege specific facts establishing how the plaintiff is aggrieved by such decision. The board’s decision in such a case shall be affirmed unless the court concludes the board abused its discretion in approving the subdivision.
This section is as significant for what it removes as for what it adds. The removal of the court being empowered to hear the entire case and to substitute its own judgement for that of the Boar is significant. This existing wording provides protection to both the developer and the abutters. Either one needs to present its case to the court, whether challenging an approval or a denial of a subdivision. Ultimately leaving the court in the position to determine if the law has been followed.
The change deals only with approval of a subdivision. It tilts the table in support of decisions to approve projects. The process for appealing a denial is left as is. This places a community in a position of having to provide a greater level of proof that a denial is appropriate than for an approval.
So, this act essentially establishes mandatory determinations for judges upon challenges to subdivision approvals. It seems we want to give the public as little rights in the process as we can. Seems like we are heading down the path of our neighbor to the north which allows only 30 days to challenge a building permit which violates zoning, even though the builder does not have to start building until the 30 days are over. Many of the sections proposed for modification in the Land Use Partnership Act should be left alone. This is one such illustration. I have seen no problems in the courts operating under the current legal framework. Obviously this change stems from developers who feel that the judicial system is too burdensome and abutters should have no rights. Look closely, it only deals with dismissing complaints for subdivision approvals! It would seem that similar deferral to the board’s decision should be made for denials, but it is not. Awful, awful, awful, very anti-community and anti-abutter.
This particular issue is also not just a planner's issue. It is an issue for every resident of the state. The change is limiting the legal rights of abutters to challenge what may be an incorrect decision. And, the incorrect action may not be the basis of the reason for the court upholding its decision, only whether the Board abused its discretion.
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