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Are Zoning Decisions Final?

When a court hands down a decision and neither party appeals, the decision becomes final and binding upon the parties. Under such circumstances, the parties will be barred from re-litigating the issues finally resolved by the prior decision. In the legal community the finality of such decisions is referred to as res judicata, "the thing adjudicated."

Increasingly in today's society legal rights and obligations are determined, not in courts of law, but before State, Federal and local administrative bodies. In recognition of this new reality, Federal and State common law has evolved to extend the same rules of finality to administrative decisions.

In Massachusetts, the standard for when a quasi-judicial administrative body may be considered a "court of competent jurisdiction" for the purposes of res judicata is as follows:

[g]enerally, in order to satisfy this element, it is necessary that the judgment be rendered by a tribunal recognized by law as possessing the right to adjudicate the controversy. Where power or jurisdiction over a subject is delegated to any public officer or tribunal and its exercise is confided to his or their discretion, the facts necessarily established by decisions lawfully made pursuant to that authority are binding and conclusive, except on appeal. The obvious reason for such a rule is to prevent relitigation of an issue before a different tribunal.

Almeida v. Travelers Ins. Co., 383 Mass. 226, 230 (1981) (footnote omitted). This rule, stated in Almeida, has been reaffirmed numerous times by the Commonwealth's highest court (in fact, many of the leading cases on res judicata issued by the Supreme Judicial Court originated before administrative tribunals).

In the zoning context, the principle set forth in Almeida raises the question of whether an un-appealed zoning decision is to be given the effect of res judicata-whether, when a zoning board of appeals finds or rules on a particular issue of fact or law and the board's decision is not appealed, that determination is final between the parties and cannot be revisited or re-litigated before the same board, court of law or otherwise. Review of Massachusetts law indicates that such decisions are to be final, subject to the ordinary elements of the doctrine of res judicata, although some trial courts consider the application of the doctrine to un-appealed zoning decisions to be an open question. See Hauer v. Casper, 20 LCR 125, 130 (Misc. Case No. 338201) (Grossman, J.) (March 16, 2012) ("Massachusetts case law is unsettled on the issue of whether all decisions of zoning boards of appeal under G. L. c. 40A constitute final judgment on the merits").

First, it is well-settled that zoning boards of appeal are "tribunals recognized by law as possessing the right to adjudicate [zoning] controvers[ies]" whether as the "special permit granting authority" under G. L. c. 40A, § 9, or over variance applications under G. L. c. 40A, § 10. Second, there are numerous cases applying principles of finality to un-appealed zoning decisions, all predicated upon the idea that people should be provided only one bite at the zoning apple. Third, the Appeals Court has expressly acknowledged the binding effect of prior, un-appealed zoning decisions. Fourth, the familiar canon of statutory construction that statutes are to be interpreted consistently with the common law strongly counsels for the doctrine's application to un-appealed zoning decisions. Fifth, many trial decisions have given res judicata effect to un-appealed zoning decisions.

Successful recipients of un-appealed zoning decisions have a rightful expectation of finality with respect to their permitting and zoning status, and should be able to rely upon the finality of the zoning decisions they obtain from local boards.

Written by Nicholas P. Shapiro, 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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