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The Appeals Court Reinforces Developer’s Expectations from Zoning DecisionsReal Estate
Posted in on June 15, 2022
The Appeals Court recently provided guidance on how defects in notice of special permit or variance hearings required by the Massachusetts Zoning Act, G.L. c. 40A, affect appeal rights. The specific issue was the Town’s failure to mail neighboring properties notice of zoning hearings, as is required by G.L. c. 40A, § 11. The Court decided that this notice failure did not allow neighbors to contest a special permit decision after the appeal period had passed. Recognizing that abutters legally entitled to mailed notices can lose appeal rights even if they never knew a public hearing had occurred, the Court balanced a developer’s expectations after the appeal period expired against other interests.
As background, many development projects require a special permit or variance that allow local boards (typically the planning or zoning board depending on the town) to consider and condition projects. Before a board can issue a decision on the developer’s application, it must hold public hearings and allow for public comment. State law requires that a municipality provide three separate notifications of a special permit or variance hearing: 1) mailing a copy of the notice to abutters; 2) posting notice in the municipality’s town or city hall, and 3) publishing in a newspaper. General Laws Ch. 40A, §§ 9 & 11. Generally, a party aggrieved by a special permit or variance must file an appeal within 20 days of the date the decision issues following a public hearing. If there are defects in the hearing notices, such party may file a complaint questioning the procedure within 90 days of the decision.
The Appeals Court concluded that parties aggrieved by a decision issued after defects in the hearing notice are bound by the 90-day appeal deadline regardless of whether they actually received notice, so long as the municipality completed 2 of the 3 statutory notice requirements. Markham v. Pittsfield Cellular Telephone Company, 101 Mass. App. Ct. 82 (2022). The Appeals Court has previously noted that the 90-day appeal deadline for notice defects may be extended if there is a “complete failure of notice”. Allegaert v. Harbor View Hotel Owner LLC, 100 Mass. App. Ct. 483, 488 n.8 (2021). This more recent case determined that failure to mail any written notices to abutters was not a “complete failure” so long as the Town complied with the publication and posting requirements of G.L. c. 40A, § 11. The Court reasoned that Chapter 40A does not require proof that the mailed notices were received. The Court compared other laws that require certified mailings or that start appeal periods on the date of delivery and concluded that their decision was consistent with legislative intent in drafting the Zoning Act.
The Court considered the interests of each side – developer and neighbor – along with the intent of the state legislature when drafting the Zoning Act. The decision promotes finality in zoning decisions and allows a developer to proceed with a project without risk of having an approved project unraveled after statutory appeal periods have expired. Although this is a harsh result for an aggrieved neighbor with no knowledge whatsoever of a hearing process, it is a reminder that awareness of local activities is important. Furthermore, the decision protects the developer who cannot send the Town’s notices, would have no reason to know of the omission, and would have likely invested “considerable time, effort, and money in proceeding with construction upon a special permit that they presumably had every reason to believe was not contested beyond what was already said at the public hearing.”
Obtaining or appealing zoning approval requires knowledge of state laws and local requirements applicable to the property. If you need help with special permits, variances, or other zoning matters, please contact Kim Kroha, at Baker, Braverman & Barbadoro, P.C. The real estate and land use team in our Quincy office includes zoning attorneys, transactional counsel, and litigators that can provide full-service assistance with projects through the South Shore and other areas in Massachusetts. – Kim Kroha, Esq.