Municipal land use board decisions: the appeals process

What you need to know to file a successful appeal

Municipal planning boards and zoning boards of adjustment have different appeal statutes, and one of them is changing.

If the correct process is not followed, an appeal may be tossed out. So, it is critical for a successful appeal to understand which statute applies and what process it calls for.

The zoning board of adjustment (ZBA), a quasi-judicial board, interprets the zoning ordinance. It decides requests for variances from the terms of the ordinance or special exceptions based on standards written into the ordinance. A party who disagrees with the decision of the ZBA must first request in writing a rehearing, stating every issue desired to be raised on appeal. If the request for rehearing is denied, the appellant has 30 days from the date of denial to file an appeal with the superior court.

The planning board is a regulatory body. Based on the requirements of the zoning ordinance, the planning board adopts regulations for subdivision and site plans for commercial and industrial uses and large residential structures. Generally, an appeal from a decision of the planning board goes directly to the superior court.

But if a decision of the planning board involves interpretation of the zoning ordinance, the appellant must first appeal to the ZBA before going to the superior court. This requirement has created considerable confusion — a sort of “hen or egg” dilemma.

Clarifying the process

A party wishing to appeal a planning board decision must file with the superior court within 30 days of the planning board decision. But the party must also file an appeal with the ZBA addressing the interpretation of the zoning ordinance. The result has been that the appellant files an appeal with the superior court, and at the same time files an appeal with the ZBA.

Given the confusion, the Legislature has undertaken to clarify the process and give guidance to both appellants and the courts by amending the planning board appeal statute. The amendment allows an appellant from the planning board decision, where an appeal to the ZBA might be required, to first proceed to the ZBA and complete that process before filing the planning board appeal at court. The appellant must file the appeal with the superior court within 30 days of the final decision of the ZBA upon motion for rehearing.

When you are involved in any issue before a land use board, it is important to present your position to the board as early as possible in the process. An appearance before a board with an oral presentation is important, but it is essential to support your position with a written submission. The best result, of course, is to have the board rule favorably on your position, supported by substantive findings and evidence in the record, and avoid an appeal altogether.

In other words, get in on the ground floor and make your case.

On appeal, a court will review the entire record of proceedings before the board, and the burden of proof will be on the party challenging the decision. So if you don’t make your case the first time around and need to appeal, make sure you have made a good record and follow the correct appeal procedure.

Attorney Carolyn Baldwin is the founding partner and of counsel to the Concord-based law firm of BCM Environmental and Land Law.