Rebuttal to Planning Board Member Public Comments

SCT&W Newsletter Dated December 3, 2021

Please note the following: Recently, Mr. Boroff, a Planning Board member, recently posted comments on the H/W Community Facebook page which contained several errors regarding the Zoning Bylaws. 

After checking with our counsel, we have confirmed that this statement of the law is incorrect.  The denial of a special permit is entirely within the discretion of the Planning Board.  Even if it is determined that the special permit could be lawfully granted because the applicant's evidence satisfied the statutory and regulatory criteria, the board has discretionary authority to deny the permit so long as the denial is not based on legally untenable or arbitrary and capricious grounds. The Planning Board's decision must be upheld by a court provided it is based on at least one valid reason.  Case law clearly supports this statement. 
 
In the case of  Buccaneer Development, Inc. v. Zoning Board of Appeals of Lenox, 87 Mass. App. Ct. 871, 874-875  , the court held that the trial court did not err in affirming a zoning board of appeals' denial of a developer's request for a special permit to build a residential retirement community, as the board found that the proposed use was not in harmony with the zoning by-law's general intent and purpose, and that the project would significantly alter the area in the immediate vicinity of the project and would represent a substantial change in the appearance and "feel" of the area. The judge found that “the proposed project would significantly alter the area in the immediate vicinity” of the project:
 
“[T]here now exists 23 acres of open land, abutting 68 acres of similarly open land immediately to the north; the overall impression is one of open space, pasture, and indigenous vegetation. Were the project to go forward, there would be 23 single family homes, similar in appearance, clustered around a parkway in a manicured setting. … [F]rom the perspective of the immediate neighborhood, the Buc[c]aneer project would represent a[ ] substantial change in the appearance and ‘feel’ of the area. At some point, development in an area reaches a ‘tipping point;’ the fact that past development has not been viewed as incompatible with the neighborhood does not mean that incremental additional development must always be viewed similarly.” Id. at p. 875

Read Attorney Deborah Eliason’s Letter to the Planning Board addressing this issue.