Navigating the Two-Year Waiting Period on Unfavorable Special Permit and Variance Applications in Under the Massachusetts Zoning Act

By Robert Nislick

You are a Massachusetts landowner and would like to develop or improve your property. You have applied or appealed to your town’s zoning board of appeals for a special permit or variance. The ZBA has denied your requests for zoning relief. You may have considered appealing the decision to the Land Court or Superior Court pursuant to G. L. c. 40A, § 17.

Perhaps you decided against appealing, even though the ZBA’s decision was unfavorable to you. Instead, you would like to reapply for the same relief, despite the fact that your petition has already been denied.

General Laws c. 40A, § 16, sets forth stringent requirements that, as a practical matter, work to prevent the landowner for reapplying for the same relief for two years after the date of final unfavorable action.

“The purpose of G. L. c. 40A, § 16 is to relieve municipal boards from the tedium of hearing the same application resubmitted over and over again, while providing the opportunity for changing neighborhoods and changing minds of municipal boards to allow a development, which was initially denied.” Hess Corp. v. Zoning Board of Appeals of the Town of Framingham, Land Court Miscellaneous Case No. 09 MISC 392913 (CWT) (Trombly, J.) (Oct. 21, 2009).

The statute states:

“No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds, by a unanimous vote of a board of three members or by a vote of four members of a board of five members or two-thirds vote of a board of more than five members, specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless all but one of the members of the planning board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered.

Any petition for a variance or application for a special permit which has been transmitted to the permit granting authority or special permit granting authority may be withdrawn, without prejudice by the petitioner prior to the publication of the notice of a public hearing thereon, but thereafter be withdrawn without prejudice only with the approval of the special permit granting authority or permit granting authority.”

G. L. c. 40A, § 16.

Essentially, the landowner would need to demonstrate that there are specific and material changes in the conditions upon which the previous and unfavorable action was based, and do so to the unanimous satisfaction of a three-person board, four out of a five-person board, or two-thirds out of a board with more than five persons. Then, all but one member of the planning board would have to consent, after notice has been given to parties in interest. The chances of prevailing are minimal. The landowner would be best advised to wait two years before seeking the same zoning relief again, in order to avoid these additional hurdles.

Assume that the landowner has applied for a special permit or variance, and the zoning board has not yet acted. An abutter expresses her opposition at a public hearing. The board continues the hearing. It appears unlikely that the landowner will obtain the zoning relief he wants. Still, the landowner would like to move forward with the project, at least in some form. It may even be possible to mollify the abutter’s concerns going forward. Nevertheless, it is apparent that the board intends to deny the landowner’s requested zoning relief.

G. L. c. 40A, § 16, allows the applicant to withdraw his petition for a special permit or variance without prejudice prior to the publication of notice of the hearing, or with the board’s approval if notice of the hearing has already been published.

If the landowner withdraws his petition without prejudice, he would not be prevented from filing the same petition again, even if it is done less than two years after he filed it initially. Essentially, he is telling the board that he does not want to move forward at this time, but also that he reserves his rights to seek the same relief again at some point. Also, it means that the board will not have either granted or denied the application.

If you need an attorney to represent you concerning a zoning matter, contact Robert Nislick, a Massachusetts real estate lawyer, and former law clerk at the Land Court, to discuss your rights and remedies. For more information, contact him at (508) 405-1238, or by e-mail.