Published on: March 8, 2012
The courts in Massachusetts and most states typically defer as much as possible to the judgment of administrative boards responsible for enforcing local ordinances and codes. When a court finds that a municipal agency has erred, it will usually remand the case for further review, either by a lower court or by the agency, giving the local officials another bite of the enforcement apple – another opportunity to achieve the result they desire.
So it is worth noting when an appellate court, given the opportunity to remand, chooses not to do so. And it is especially worth noting when the court in question is the Massachusetts Supreme Judicial Court (SJC) and when the court cites “equitable” considerations as the reason for not giving a local zoning board another chance to reject a building permit, even though there may have been grounds for it to do so.
The underlying case ― Shirley Wayside Limited Partners vs. the Board of Appeals of Shirley ― involved a request by Wayside to expand its mobile home park from 65 to 79 units. Because the park pre-dated a zoning change barring mobile home parks, it operated as a pre-existing nonconforming use. The Zoning Board of Appeals rejected the expansion request, citing two primary objections: The density of the development would have a “substantially more detrimental” impact on the neighborhood than the existing park; and the expansion would increase the total square footage of the mobile homes by 23.8 percent, “encroaching” too closely on the 25 percent maximum increase permitted for the expansion of a nonconforming use.
The Land Court, finding that the board’s reasons for rejecting the special permit were “pretexts” and its decision “arbitrary and capricious,” ordered the board to reverse its decision. A divided Appeals Court agreed that most of the board’s objections were unfounded, but determined that the density concern provided a valid basis for rejecting the permit. Wayside requested and was granted further appellate review by the SJC.
Zoning Laws Apply
As an initial finding, the court rejected Wayside’s argument that the project needed to comply only with the Public Health Department’s licensing regulations establishing a minimum size for mobile home parks. In fact, the SJC said, “licensing laws…authorized pursuant to the state’s police power and zoning bylaws, promulgated by cities and towns ‘to protect the health, safety and general welfare of their present and future inhabitants,’ operate in separate and mutually exclusive spheres….Wayside’s compliance with health regulations therefore cannot substitute for compliance with the zoning bylaw.”
Having defanged Wayside’s primary argument, the court proceeded to do the same for the Zoning Board, rejecting its contention that the expansion did not comply with the zoning bylaw’s minimum lot size requirements. The board argued that mobile homes were subject to the same requirements as single-family homes, but the SJC found that the lot size requirements applied to the park as a whole, not to the individual mobile homes within it.
Having made that critical decision in Wayside’s favor, the court took an unexpected step, noting that while Wayside’s expansion plan met the minimum lot size requirements, it might not satisfy the 30-foot setback required for a “front” or “rear” yard.
Equitable Considerations Prevail
“The board could thus have appropriately denied the application for expansion” on that basis, the court noted, and “on this record, we could therefore remand the case to the Land Court, both to confirm the [rear or front yard] measurement and to determine whether it violates the setback provision of the bylaw. In the present case, however,” the court decided, “equitable considerations require us to forgo a remand.”
The court’s major concern: Throughout the permitting process and the litigation, both Wayside and the Zoning Board assumed that the Health Department’s licensing regulations governed the setback. “Applying the more stringent zoning bylaw at this stage,” the court said, “would inflict an unfair burden on Wayside,” and would not do anything to further the aims of the setback regulation – lessening street congestion, providing “adequate light and air” and “avoiding undue concentration of population,” among them.
Had Wayside been aware that the bylaw provisions would apply, the court said, the company could easily have used undeveloped land behind the mobile home park to comply. “Forcing Wayside to seek approval of a substantially identical plan today from a town that is hostile to the project, on the basis of a provision that either party anticipated, is plainly inequitable,” the court concluded.
An Eyebrow Raiser
It is hard to read that statement without raising an eyebrow – or two. While it may not represent a sea change in the court’s philosophy, it differs sufficiently from what has been the judicial norm in these cases to attract notice – like a single red sentence in a manuscript otherwise written in black. Admittedly, the court based its decision largely on the way this case unfolded: Both parties ignored what the court found to be a decisive issue – compliance with the zoning bylaw’s setback requirements.
Still, if the SJC found equitable considerations to be sufficiently compelling in this case to outweigh arguments for remanding it, it might reach the same conclusion in others; and it is possible that lower courts, guided by the SJC’s reasoning, might apply a similar equitable balancing act, with a similar result.
For property owners, who would have assumed correctly that a case such as this (in which the appellate court identified a legal basis to deny zoning relief) would almost certainly result in a remand and a victory for the administrative board, this decision offers a measure of hope – reason to decide that an appeal they would have dismissed as hopeless might be worth pursuing after all. The decision doesn’t assure success, by any means; but it opens a little bit a door that was slammed shut before.
For municipal boards, the message is even clearer: When defending a decision, dot all the i’s and cross all the t’s. If you have multiple arguments to support the decision, cite all of them. You might find that the arguments you omit will be the last ones standing, and you can’t necessarily count on getting a second chance to introduce them.