The dispute over Concord’s application to enlarge its water treatment plant at Nagog Pond seems to be coming down to a question of whether Acton’s elected leaders have the legal authority to say “no” to a development that is opposed by virtually every Acton resident who has submitted either oral or written comments throughout the long series of hearings. In this post we have compiled lines of reasoning from throughout Massachusetts showing that local authorities have extensive powers to say “no” if they believe that a development will be “injurious.”
This Nagog Pond situation has been a steep learning curve for the Green Acton Land Use Committee, so if you see something that you think is in error, please put your thoughts into the Comments field at the bottom of this post.
The history of Massachusetts courts’ authority on matters of size of
building and other determinations of “injurious” appears to be limited
to the question of “balancing” whether a concern is less or more
important than a greater community need, for example, affordable housing.
Where a “special permit” is required by a local bylaw, the determination
of whether something is injurious or not is almost always left to the
local authorities, whether the determination is based on qualitative
criteria or not.
It’s worth noting, at this point, that the Concord case is not about
balancing a mandated or proven need for water. Or a regional need to
pump the water. Concord has plenty of water. Its case relies, instead,
on a presumed “right” to withdraw water, not on an actual “need”. In
fact, Concord’s assertion is not about a greater regional or societal
need at all, but rather Concord’s presumed “right” to pump water and
therefore its right to build more than it actually needs
Either way, courts have already decided that towns have the right to
limit the size of projects.
LOCAL RIGHT TO LIMIT THE SIZE OF A BUILDING
This first case is about a college that wanted to change a use from a
multi-family resident to a 50 student dormitory. The local Board of
Appeals ruled that the proposal was not appropriate, quoting from the
case, where the BoA ruled:
“that the specific site is not an appropriate location for the use, that
the proposed use will adversely affect the neighborhood, that this will
be a hazard to vehicles and pedestrians, that a nuisance will be created
by the proposed use in that adequate and appropriate facilities cannot
be provided on this locus for the proper operation of the intended use.”
Upon appeal, the judge affirmed the local Board of Appeals, citing that:
“local regulations are presumed valid unless a sharp conflict exists
between the local and the State regulation. School Comm. of Boston v.
Boston, 383 Mass. 693 , 701 (1981)”
This is a high bar, because in Massachusetts strong Home Rule tenets
LOCAL AUTHORITY RULES UNLESS THE LEGISLATURE HAS ENACTED SPECIFIC LIMITS
In Wellesley vs Ardemore Apartments, the judge noted that local autonomy
must be respected, specifically stating [[emphasis added]]
“‘[Note 22] <http://masscases.com/cases/sjc/436/436mass811.html#back22>
Article 60 of the Amendments to the Massachusetts Constitution, ratified
in 1918, gives the Legislature authority “to limit buildings according
to their use or construction to specified districts of cities and
towns,” _/*but deference to local autonomy in matters of land use and
zoning is well established. */_See Symposium, supra at 328. _/*Indeed,
the Legislature has delegated almost entirely its constitutional zoning
authority to cities and towns.*/_ See 760 Code Mass. Regs. § 30.01(1)
(1993) (“The General Court has chosen to delegate this [art. 60]
authority almost entirely to the cities and towns instead of exercising
it more directly through a state agency”). Moreover, under the Home Rule
Amendment, art. 89 of the Amendments to the Massachusetts Constitution,
towns generally are no longer required to seek authority from the State
in order to impose controls relative to zoning. Baldiga v. Board of
Appeals of Uxbridge, 395 Mass. 829
<http://masscases.com/cases/sjc/395/395mass829.html> , 834 n.5 (1985).
General Laws c. _/*40A itself expressly recognizes local autonomy in
dealing with land use and zoning issues*/_. Id. at 834. See Board of
Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339
<http://masscases.com/cases/sjc/363/363mass339.html> , 368 (1973);
Burnham v. Board of Appeals of Gloucester, 333 Mass. 114
<http://masscases.com/cases/sjc/333/333mass114.html> , 117 (1955)
(zoning “has always been treated as a local matter and much weight must
be accorded to the judgment of the local legislative body”); Symposium,
supra at 345-354. See also Trustees of Tufts College v. Medford, 415
Mass. 753 <http://masscases.com/cases/sjc/415/415mass753.html> (1993)
(“legitimate municipal concerns . . . typically find expression in local
zoning laws”).” SOURCE: <http://masscases.com/cases/sjc/436/436mass811.html>
[Note 9] <http://masscases.com/cases/sjc/436/436mass811.html#back9>
General Laws c. 40B, § 21, _/*provides that the local zoning board has
“the same power to issue permits or approvals as any local board or
official who would otherwise act with respect to such application,
including but not limited to the power to attach to said permit or
approval conditions and requirements with respect to height, site plan,
size or shape, or building materials as are consistent with the terms of
this section.*/_” See Board of Appeals of Hanover v. Housing Appeals
Comm., 363 Mass. 339
<http://masscases.com/cases/sjc/363/363mass339.html> , 355 (1973).
And in Robert Manning v BRA, the judge states [[emphasis added]]
“_/*We give substantial deference to the construction placed on a
statute or an ordinance by the agency charged with its
administration*/_. See, e.g., Amherst-Pelham Regional School Comm. v.
Department of Educ., 376 Mass. 480
<http://masscases.com/cases/sjc/376/376mass480.html> , 491-492 (1978).”
THE BURDEN OF PROOF IS ON THE PLAINTIFF
The burden is on the applicant to prove that overruling the local
authority has a compelling state interest. And that is very
difficult…because “no person has a legal right to a variance”.
In Alison Sheppard v Boston ZBA, the judge reminds us [[emphasis added]]:
“_/*As the party who had sought the variances, McGarrell bore the burden
at trial of proving his entitlement to them.*/_ 39 Joy St. Condominium
Assn. v. Board of Appeal of Boston, 426 Mass. 485
<http://masscases.com/cases/sjc/426/426mass485.html> , 488 (1998). In
reviewing the trial judge’s decision, we are mindful that “_/*[n]o
person has a legal right to a variance and they are to be granted
sparingly*/_,” since if they “are granted with undue frequency or
liberality, and without strict compliance with the prescribed statutory
criteria, zoning regulations can become a matter of administrative
whim.” Damaskos v. Board of Appeal of Boston, 359 Mass. 55
<http://masscases.com/cases/sjc/359/359mass55.html> , 61- 62 (1971).
“_/*”crowding of an abutter’s residential property by violation of the
density provisions of the zoning by-law will generally constitute harm
sufficiently perceptible and personal to qualify the abutter as
aggrieved*/_.” Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App.
Ct. 8 <http://masscases.com/cases/app/74/74massappct8.html> , 12 (2009),
quoting from Dwyer v. Gallo, 73 Mass. App. Ct. 292
<http://masscases.com/cases/app/73/73massappct292.html> , 297 (2008).”
Similarly in Eileen Standerwick v Andover ZBA, we are reminded further
of the plaintiff’s burden of proof, that to overrule local authorities
would necessitate Concord proving that its own legal interests were
injured by Acton’s decision. A high bar, given it has no actual need for
_/*”our long-standing jurisprudence that standing to challenge a zoning
decision is conferred only on those who can plausibly demonstrate that a
proposed project will injure their own personal legal interests and that
the injury is to a specific interest that the applicable zoning statute,
ordinance, or bylaw at issue is intended to protect.*/_ See Circle
Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427
<http://masscases.com/cases/sjc/324/324mass427.html> , 431 (1949)”
“See also Massachusetts Ass’n of Indep. Ins. Agents & Brokers, Inc. v.
Commissioner of Ins., 373 Mass. 290
<http://masscases.com/cases/sjc/373/373mass290.html> , 293 (1977) (party
has standing when alleging “injury within the area of concern of the
statute or regulatory scheme under which the injurious action has
occurred”); B.C. Levey, Massachusetts Zoning and Land Use Law § 5-26(b)
(1996 & Supp. 1998) (_/*plaintiff must show that proposed project “will
injure his legal or property interests and that the injury is to an
interest the zoning law was intended to protect”)*/_; Healy, Judicial
Review of Variance and Special Permits, 1 Massachusetts Zoning Manual §
11.5.2 (b), at 11-39 (Mass. Continuing Legal Educ. 2000 & Supp. 2002)
(to be “person aggrieved,” plaintiff’s injury “must relate to a
cognizable interest protected by the zoning provisions at issue”).”
“See also Perley v. Perley, 144 Mass. 104 , 107-108 (1887) (if presumed
fact is “met and encountered” by defendant’s contrary evidence,
_/*burden of proof remains with plaintiff and is “not for the defendant
to show that [the presumed fact] does not exist”).*/_ ” source:<http://masscases.com/cases/sjc/447/447mass20.html>
THE RISK OF PRECEDENCE
No application for a special permit for the increase in building size or
traffic increase has been approved in Acton in a residential
neighborhood. And thus approving this one would set the stage for
others, making it a dangerous proposition to approve an increase of 400%
for an industrial use, in a residential neighborhood.
It is long established, that if you do it once you’ll have to do it
again. This tenet is highlighted in SCIT, INC v Braintree Planning Board
“The uniformity requirement is based upon principles of equal treatment:
all land in similar circumstances should be treated alike, so that
_/*”if anyone can go ahead with a certain development [in a district],
then so can everybody else*/_.” I Williams, American Land Planning Law
Section 16.06 (1974). <http://masscases.com/cases/app/19/19massappct101.html>
“A zoning ordinance is intended to apply uniformly to all property
located in a particular district . . . and the properties of all the
owners in that district [must be] subjected to the _/*same restrictions
for the common benefit of all.*/_”source:
“Some exceptions to uniformity are sanctioned by The Zoning Act and
involve generally a limited tolerance for nonconforming uses (Section 6
of c. 40A) and provision for special permits and variances (Sections 9
and 10 of c. 40A, respectively). These exceptions aside, Section 4 does
not contemplate, once a district is established and uses within it
authorized as of right, conferral on local zoning boards of a roving and
virtually unlimited power to discriminate as to uses between landowners
similarly situated.” source:
LOCAL SPECIAL PERMIT POWER, IN PARTICULAR
“Special permit procedures have long been used to bring flexibility to
the fairly rigid use classifications of Euclidean zoning schemes (see 3
Anderson, American Law of Zoning Section 19.01 [2d ed. 1977]; see also
Burnham v. Board of Appeals of Gloucester, 333 Mass. 114
<http://masscases.com/cases/sjc/333/333mass114.html> , 116 ) by
providing for specific uses which are deemed necessary or desirable but
which are not allowed as of right because of their potential for
incompatibility with the characteristics of the district. See 3
Rathkopf, Zoning and Planning Section 41.01, at 41-3 (4th ed. 1984).”
Interestingly, Concord was, in its own case against Sellors claimed that
the locality had the right to decide whether something was injurious to
the neighbors or not. <http://masscases.com/cases/sjc/329/329mass259.html>
I found this case where Concord made this claim in the SCIT INC vs
Braintree, where the judge listed a number of cases establishing the
“broad power of a local board in the special permit area”:
<http://masscases.com/cases/app/19/19massappct101.html#back11> The broad
power of a local board in the special permit area has been commented
upon in a number of decisions of which Humble Oil & Refining Co. v.
Board of Appeals of Amherst, 360 Mass. 604
<http://masscases.com/cases/sjc/360/360mass604.html> , 605 (1971), and
Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App.
Ct. 483 <http://masscases.com/cases/app/8/8massappct483.html> , 486
(1979), state the relevant principles concerning a denial of a special
permit. See also (as a sampling of decisions on both the grant and
denial of special permits), Sellors v. Concord, 329 Mass. 259
<http://masscases.com/cases/sjc/329/329mass259.html> (1952); Gulf Oil
Corp. v. Board of Appeals of Framingham, 355 Mass. 275
<http://masscases.com/cases/sjc/355/355mass275.html> (1969); MacGibbon
v. Board of Appeals of Duxbury, 356 Mass. 635
<http://masscases.com/cases/sjc/356/356mass635.html> (1970); Josephs v.
Board of Appeals of Brookline, 362 Mass. 290
<http://masscases.com/cases/sjc/362/362mass290.html> (1972); Kiss v.
Board of Appeals of Longmeadow, 371 Mass. 147
<http://masscases.com/cases/sjc/371/371mass147.html> (1976); Pioneer
Home Sponsors, Inc. v. Board of Appeals of Northampton, 1 Mass. App. Ct.
<http://masscases.com/cases/app/1/1massappct830.html> (1973); S.
Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357
<http://masscases.com/cases/app/4/4massappct357.html> (1976); and S.
Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App.
Ct. 477 <http://masscases.com/cases/app/9/9massappct477.html> source: <http://masscases.com/cases/app/19/19massappct101.html>
“As to site plan approval as a permissible regulatory tool, attention is
directed to Y.D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass.
25 <http://masscases.com/cases/sjc/357/357mass25.html> (1970). In that
case, a by-law which required site plan approval for all commercial
development in nonresidential districts (but not for the residential
uses permitted as of right in those districts) was upheld as a valid
exercise of the town’s zoning power.” source:
The courts have firmly determined that town’s have the right to limit
building size. They courts continue to support local decision making.
EVEN IN AFFORDABLE HOUSING, WITHOUT A REGIONAL NEED, THE LOCALS DECIDE
Even in affordable housing, there time after time, courts side with the
developer, the applicant has to prove that there is a compelling need
for housing, or else the local authorities hold all the approval power.
In these cases, the town has the last say, unless the applicant can
prove a regional need for such building.
The burden of proof is firmly on the applicant. And if the applicant
can not prove such a regional need, then home rule applies, and the
courts side with local authorities.
In the case Zoning Board of Appeals of Canton vs Housing Appeals Committee,
the court refers to the need for regional housing as a reasonable justification
for trumping local needs. However, the judge also notes that a balance
is allowed to ensure that [emphasis added]:
“the weight of the local concern will be commensurate with
the degree to which the health and safety of occupants or town
residents is imperiled, the degree to which the natural
environment is endangered, the degree to which the design of the site
and the proposed housing is seriously deficient, the degree to which
additional open spaces are critically needed in the city or town, and
the degree to which the local requirements and regulations bear a direct
and substantial relationship to the protection of such local concerns…”
Of course, the question of balance rests with the court in matters of
housing. But the case at hand is not about housing. That said, while
this project isn’t about housing, using the housing example is important
to this case, because of the weight of local needs over an individual
property owner is respected so thoroughly.
As a result, there does not appear to be any authority for the Land
Court to overrule a town’s claim that a development is injurious to the
town EXCEPT where regional low income housing is required. This is key
because what Concord is proposing is NOT to satisfy a regional housing
need. It’s not to satisfy any “need” at all.
And so this case is important to our case.
EVEN IN HOUSING, TRAFFIC DETERMINATIONS FALL TO THE LOCAL AUTHORITIES
As further evidence that traffic safety determinations do not fall in
the court’s purview, I refer you to WILLIAM B. BEARD vs. TOWN OF
SALISBURY http://masscases.com/cases/sjc/378/378mass435.html where the
court states [[emphasis added]]:
“_/*it is not this court’s province to evaluate the wisdom of a matter
of municipal policy. Because due regard must be accorded to the wishes
of local residents,*/_ the only questions which this court or other
courts may address, apart from those involving the constitutionality of
a challenged regulation or the procedural prescriptions precedent to the
law’s adoption, are whether a local enactment extends beyond the
authority conferred by its enabling statute or whether it exceeds the
implied powers which are granted municipalities by the Home
RuleAmendment. <http://masscases.com/cases/sjc/363/363mass136.html> (1973).”
In other words, if there is no specific Legislative action indicating
that Acton does NOT have the right to determine what is safe or not
safe, injurious or not injurious, then the Town has the right to decide.
There does not appear to be any authority for the courts to overrule a
town’s safety determination or determination of injurious, except when
its about housing.
TOWNS CAN ENACT STRICTER SAFETY REGULATIONS THAN STATE/FED LAW INDICATES
Further, there is much precedence for a town’s ability to be MORE STRICT
relative to state level regulations, EXCEPT where affordable housing is
in question. I can cite many cases in this regard, starting with the
protection of water, where a municipality often has more strict
protections than afforded by federal regulations.
And so if Concord’s pumping a “registered” amount of water” is not a
mandate, and the town has theright to self-determination, where the
Legislature has not specifically taken away that right, I claim that we
have every right to say no, when we believe that a project is unsafe or
injurious to our town.
Finally, we look to RALPH TITCOMB vs. BOARD OF APPEALS OF SANDWICH
(<http://masscases.com/cases/app/64/64massappct725.html>), the Superior
Court concluded, “the board’s decision disclosed an error of law. In
addition, the judge concluded that the proposed use would be
substantially more detrimental than the existing nonconforming use to
In this case, it was determined that the local board was more familiar
with the traffic [[emphasis added]]:
“we hold that, in light of the factors cited above, it is_/*”the board’s
evaluation of the seriousness of the problem, not the judge’s, which is
controlling.”*/_ Copley v. Board of Appeals of Canton, 1 Mass. App.Ct.
821 (1973). See Pendergast v. Board of Appeals of Barnstable, 331 Mass.
at 560; Cliff v. Board of Health of Amesbury, 343 Mass. 58 , 62 (1961).
In this last case, the ruling was a boon for the applicant who was
granted a special permit. A lower judge ruled against the applicant,
citing that the traffic would be too much. But that was overturned with
the stipulation that the town knows better.
The point here is yet again, in cases where there is not a specific
mandate (i.e. affordable housing), local determinations hold more authority.
The SJC has determined that, although it is difficult to define the
scope of the police power, it plainly “extends to all matters affecting
the public health or the public morals,”
The point here is yet again the Legislature cannot surrender its broad
authority to regulate matters within its core police power – See more
THE STRENGTH OF HOME RULE
As evidence as to how strong home rule is in Massachusetts, I present
the AG’s memo (from the then Attorney General of Massachusetts, Martha
Coakley, defending Concord’s right to enact a limited ban on the sale of
single-use water bottles. In this memo, the AG responds to the water
industry’s claim that Concord has not adequately proven that
single-user-water bottles are dangerous to its citizens health and
safety. The AG declares, in response to that claim, the AG declares that
Concord does not have to PROVE that single-use water bottles are
dangerous to the health and safety of its residents, only that voters
BELIEVE that they are detrimental to their health. And then prove that
voters have then banned the single-use water bottles (with limitations,
spelled out in their bylaw. As a result, the town rules. The state and
the feds do not preempt the local authorities, in this case, Concord’s
In our case, we do not have to prove that that proposed plant is
injurious, only that the local authorities BELIEVE that it will be
Further, Acton’s Town Meeting approved not only the zoning, to be
residential “suited for residences”, but it enacted its Master Plan to
ensure that all special permit approvals “protect the quality and
quantity of Acton’s water.”
And so that provides not only the legal basis, but a strong legal basis.
As evidence for the re, I go back to the AG’s claim, that for a town to
have a valid ordinance for safety’s reason, that it does not have to
PROVE that something is unsafe, only that the citizens believe that it’s
The court has no constitutional mandate to ensure Concord’s desire for
enough water to satisfy the unquenchable thirst for lawn watering. And
there is no stated legislative requirement for Acton to allow Concord to
increase the size of their building 400% or to have access to as much
water as it wants. There is no stated legislative requirement for Acton
to imperil the neighborhood and possibly even the town itself.
And therefore, as so well articulated in Wellesley v Arden, in
Massachusetts at least, “_/*deference to local autonomy in matters of
land use and zoning is well established.” */_source:
— Terra Friedrichs, former-Selectman, Acton