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Appeals Under M.G.L. c. 40A, § 17: De Novo Review and Deference to Boards

Understanding the judicial standard of review is important for litigants in zoning appeals filed under M.G.L. c. 40A, § 17, including the denial or approval of special permits and variances, and, in some cases, site plan review. Such appeals also include zoning board decisions related to enforcement actions via the zoning enforcement officer (i.e. building inspector).

The judicial standard of review involves a combination of two concepts:

  • de novo review; and
  • deference

Recently, the Land Court succinctly set forth the standard of review in Hauer v. Casper, 2012 WL 951645 (Mass. Land Ct. March 16, 2012):

'Review of a board's decision ... pursuant to G.L. c. 40A, § 17, involves a "peculiar" combination of de novo and deferential analyses.' . . . The court grants some measure of deference to the board's legal conclusions but fact finding is a de novo review. . . . 'While a judge is to give 'no evidentiary weight' to the board's factual findings, the decision of a board 'cannot be disturbed unless it is based on a legally untenable ground' or is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge'. . . . (citations omitted)

'The reasonable construction that [the Board] gives to the by-laws it is charged with implementing is entitled to deference.' . . . When the meaning of the language is plain and unambiguous the court enforces the bylaw according to its plain wording. (citations omitted)

So what does this all mean?

De novo review refers to the facts to be found by the trial court judge. Although the zoning board found facts in order to reach its underlying decision, the judge is not bound by those facts. Moreover, she cannot give evidentiary weight to them in her assessment of the record. Instead, the judge must take all factual evidence available in the record and review it de novo-meaning "anew" and independently of the board-before analyzing the legal validity of the board's decision in light of those facts found by the judge.

De novo review is sometimes beneficial to litigants because it affords them the opportunity to offer additional evidence that supports (or undermines) the board's decision, even if they did not present it to the local board. This becomes essential in cases where the administrative record of the local proceedings is sparse.

On appellate review, the appeals court will generally not set aside the trial court's de novo findings of fact unless there is no evidence to support them or they are clearly erroneous. See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 474-475 (Mass. 2012) (but noting that the appeals court will review the trial judge's legal analysis de novo). On the other hand, if an appeal is decided on cross motions for summary judgment-where the judge does not engage in fact finding-any appellate review of the lower court's assessment of the record will not be entitled to deference. See Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 517-518 (2011). This is something to consider during strategic litigation planning.

Once the facts are found de novo by the judge, the question becomes whether any rational board, in applying and interpreting its own bylaws, could come to the decision being challenged on appeal. This is where the deference component comes into play.

The court must give deference to the local board's reasonable interpretation of its own zoning bylaw. This potentially means that even if the judge's facts would warrant the issuance of a permit, there may be instances where the board's denial must be upheld regardless. Indeed, the decision of a board "'cannot be disturbed unless it is based on a legally untenable ground' or is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge". See Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381-82 (2009) (citations omitted). Though this is perhaps the most difficult outcome for litigants to accept, this kind of deference is granted in order to give local authorities control over community planning instead of the courts.

Nevertheless, as many cases point out, there are certainly instances where the zoning board's decision must be overturned despite deference principles, including

  • An incorrect interpretation of the zoning bylaw;
  • No rational view of the court's facts supports the board's conclusions;
  • The board's reasons for the decision lacked substantial basis in fact; or
  • The reasons given by the board were not related to the purposes of the zoning bylaw or were merely pretext for "arbitrary action".

Litigants must be prepared to present their case to withstand the judicial standard of review, and can do so if they have a comprehensive understanding of the de novo and deference components early on in the case.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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