Published on: January 22, 2003
The process for appealing local site plan decisions will be clearer in the future, thanks to a recent decision by the Massachusetts Appeals Court (“Appeals Court”). The Appeals Court’s ruling, in Cumberland Farms, Inc. vs. Planning Board of Bourne, establishes a uniform judicial standard for reviewing planning decisions, bringing a welcome measure of procedural order to a process that has evolved somewhat haphazardly from disparate local development approval practices.
Cumberland encountered that procedural thicket when it sought approval for a plan to add a retail convenience store to a gasoline station the company operates on a parcel fronting a major traffic rotary in Bourne. Following the town’s development approval process, Cumberland submitted a building permit application to the Building Department. The application included a detailed site plan, which the Building Department forwarded to the Planning Board. Approval of the site plan was a prerequisite for the issuance of a building permit.
When the Planning Board rejected the site plan, Cumberland (in the Appeals Court’s words), “purporting to act pursuant to Massachusetts General Laws Chapter 40A,” appealed to the Zoning Board of Appeals (ZBA), without waiting for the Building Department to act on the building permit request. When the ZBA upheld the Planning Board’s adverse action, the action moved to the Superior Court, where Cumberland challenged the rejection of its site plan.
At the behest of the Superior Court judge hearing the case, attorneys for Cumberland and Bourne moved to seek court review under “certiorari” rather than under Chapter 40A. The Superior Court’s reasoning was that the Planning Board had treated the site plan as an “of right” application that did not require a special zoning permit. An as of right petition, by definition, does not fit within the 40A procedures for challenging a zoning decision, the Superior Court reasoned, hence its suggestion that the parties should seek the certiorari review instead.
Certiorari Did Not Apply
The distinction between the two review standards is important. Certiorari is a more limited process that generally does not permit “de novo” review; the court must accept the underlying facts as presented to the local boards and reject their decision only if it is “arbitrary and capricious.” A de novo procedure, which permits review of the underlying facts, is more flexible and likely to be more favorable for someone who is trying to overturn a permitting decision.
The Appeals Court ruled that the Superior Court erred in imposing the certiorari standard in this case. Certiorari, the Appeals Court said, is designed “to provide a remedy where none would otherwise exist.” But other remedies were available here, the court said, under the 40A procedures that Cumberland followed initially and should have continued to pursue.
“We hold that a zoning appeal….provided a reasonably adequate remedy in this case and that, accordingly, certiorari was not available, notwithstanding the apparent agreement of the parties and the elusive procedure for review of site plan approval decisions under developing law.”
The Appeals Court, thus, remanded the case to the Superior Court for further review under the 40A zoning appeal standards.
In another helpful ruling in this case, the Appeals Court held that Cumberland properly initiated its appeal of the Planning Board’s decision, even though the Building Department had not yet acted on the company’s building permit request. Absent approval of the site plan, the Building Department could not issue a building permit, the court noted; so the Planning Board’s rejection of the site plan made the Building Department’s decision a foregone conclusion. Cumberland was not required to await a formal action that would only confirm a decision that, in effect, had already been made, the court said. However, if Cumberland ultimately prevails on the site plan approval, the court added, “there remains the possibility that other matters within the building inspector’s review responsibilities may stand as grounds for denial of the building permit.”
A Clearer Path
But beyond Cumberland, the Appeals Court’s decision provides a level of certainty for developers and their attorneys, who, until now have faced a confusing set of review standards that have made it difficult to know how to pursue a site plan appeal. If a town’s bylaws assigned the site plan review to the ZBA, the parties would appeal under Chapter 40A, permitting de novo review of the decision. But if the town left site plan reviews to the Planning Board, the less advantageous (to the developer) certiorari review would arguably apply.
The Appeals Court decision makes it clear that the courts will review all site plan appeals under the 40A framework. As a result, attorneys can now advise their developer clients without wondering whether the procedural steps they are taking will allow the substantive review they are seeking.