Daily Development for Friday, May 5, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

ZONING AND PLANNING; PROCEDURE; TIME FOR DECISION; "CONSTRUCTIVE APPROVAL:" Timely filing by special permit granting authority of a document which sets forth action = of authority, including votes of each member constitutes "final action" within meaning of a statute under which failure of authority to take = final action within specified time will be deemed to be a grant of special permit, even where the document includes reasons which do not support result of vote, and which in fact would support a contrary vote,.

Board of Alderman of Newton v. Maniace, 711 N.E.2d 565 (Mass. 1999). Abrogating Shea v. Alderman of Chicopee, 434 N.E.2d 214.

Defendants filed with the city clerk an application for a special = permit and site approval plan to construct a supermarket. A public hearing was held and parties extended the time within which the board was required to take final action. The land use committee recommended approval of the application, and a draft report of the Board of Alderman was = prepared supporting a favorable result. The issue was hotly contested, and a = report was also prepared supporting a negative result. Ultimately the board failed to provide the two thirds vote necessary to support the land = use committee's recommendation. Apparently through a clerical error, however, the Board filed a document containing the record made to support a favorable result but which set forth the vote of the = individual board members and with the notation "failed to carry."

The issue was whether the timely filing of a document which sets forth the action of the board, including the votes of each member, but = includes reasons which do not support the result of the vote and which would support a contrary vote, constitutes "final action" within =A7 9. = Failure by the board to timely file a decision for an application for a special = permit under M.G.L.A. c. 40A will be deemed a constructive grant of such permit.

The court noted that Section 9 has never been interpreted to impose a "constructive grant" penalty on a special permit granting authority which timely denies a special permit but fails to comply with the statutory requirement that = it provide reasons for the denial. In its view, the Legislature did not = intend that local boards be required to delineate their reasons for denying a special = permit application in order to satisfy the "final action" requirement of =A7 = 9. Though there is also a requirement that the board file in a timely = manner with the city clerk "a detailed record of its proceedings," this does = not imply the record must be contained in the document filed for purposes = of meeting the final action requirement.

Furthermore, in the view of the court, where a board denies a special = permit, the requirement that the board provide reasons supporting its decision is less demanding = than if the board had acted affirmatively. A tolerant view of the = requirement to provide reasons is also taken particularly since reasons are often lacking. The Court held that whether one views a document filed by the board as providing reasons antithetical to its action, or no reasons = for its action, the same conclusion is had. The case was remanded for entry of = a judgment that the Board timely filed its decision on the defendants' application for a special permit and site plan approval with the city = clerk, and that constructive approval of the defendants' application did not occur.

Comment 1: Although, like many zoning cases, this case is an interpretation of local law and only of indirect value in other jurisdictions, the philosophy espoused here in the interpretation of = the "constructive grant" concept is important, as more and more of these types of provisions are appearing in land use ordinances.

Comment 2: Although the case, therefore, may be valuable as precedent, the question remains whether it is a good precedent. The court states = that the filing of the negative result and vote were sufficient to inform = the applicants of their position and provide a basis upon which applicants could make future decisions, including a decision to appeal (which, by the way, they did in a proceeding not at issue here). But isn't a = critical element in the appeal, and in fact in the decision whether to invest in = an appeal, the stated basis that the agency has given for the decision?

The court says, that the answer to this question is "no." The editor disagrees. These pages have reported in the past a number of land use decisions in which the stated reasons for a decision are evaluated by = an appellate court in determining whether that decision is supported in = the record and should be upheld. If an applicant doesn't know the reason = for denial.

Comment 3: Equally questionable is the court's conclusion that the listing of the reasons for a decision is less important when the = application has been denied.

The court's stated reason is that it is more difficult for a group of lay people to "state in detail all possible factors the nonexistence of which resulted in the denial of the application." Sounds OK, until we remember that we're talking about government here, with budgets, lawyers, planning staff, and the responsibility to use those assets to provide a orderly and procedurally correct land use permit system.

Apparently the court is more interested in providing a basis for appeal = for those opposing land use applications than for those applying. Why?

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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