Tonight, the Planning Board will meet to review its procedures and listen to public comment on ideas for improving the special permit process. The meeting will take place at 7 pm at City Hall Annex, 344 Broadway.
Building on the efforts of Nancy Ryan and other concerned residents – I focused on the issue of Planning Board reform this summer when I introduced a proposal to enable the city council to temporarily exercise its oversight authority on certain Project Review Special Permit decisions for the duration of the Citywide Master Plan process.
The council ultimately voted to quash debate on the so-called "Carlone, et al. petition," which would have effectively provided a mechanism for reshaping the Sullivan Courthouse redevelopment as well as other large projects in the Fresh Pond / Alewife area. Nevertheless, one of the positive outcomes of the petition was that it helped bring Planning Board issues to the forefront.
Over the course of the summer, we learned that the Planning Board had been operating with vacancies and expired terms, and we heard from residents who expressed a myriad of concerns regarding communication, notice, and procedure. We also learned that for large development projects, the Board has never denied a Project Review Special Permit.
As a council, we voted in July to create an Advisory Committee to address these issues. The committee was supposed to be formed this fall – but last night, the City Manager informed the council that he would convene a focus group instead.
While I think it's problematic for the City Administration to pull back from the council's Advisory Committee order, I nevertheless agree that the City has been responsive in looking for ways of improving the format of Planning Board hearings.
However, one area that goes unaddressed by the City's outline is the matter of how the Board views its own standards of review under the law.
As noted over the course of this summer's petition debate, Massachusetts case law says that special permits are discretionary. Here's just a sample of our research on this point:
- “The granting authority has the full range of discretion in shaping its decisions.” See Mark Bobrowski, Massachusetts Land Use and Planning Law, Sec. 9.04 and cases cited therein, including Sedell v. Zoning Board of Appeals of Carver (denying special permit relief due to impacts on neighborhood character).
- The special permit granting authority may consider the effects of other projects approved or denied in the vicinity of a proposal, including traffic impacts. See Colangelo v. Board of Appeals of Lexington (denying a special permit because of the proposed commercial development’s impact on traffic).
- “Even when a zoning board cites no particularized reasons or any specific evidence for it denial decision, its action will be upheld... if a rational basis for the denial exists which is supported by the record.” Davis v. Zoning Bd. of Chatham.
- The special permit granting authority may deny a special permit even in cases where it may have been lawfully issued. See Humble Oil v. Town of Amherst (finding that “the granting of a special permit was discretionary...even if requirements for granting a special permit set forth in the by-law were satisfied...consideration of future hazardous traffic conditions in the area did not render its decision arbitrary or unreasonable.”)
- "It is important to remember that through the special permit process, the municipality typically retains control and can turn down any development not to its liking." (pg. 4, MAPC Citizens' Guide)
Despite this case law, the Planning Board continues to assert that it is "obligated" to issue special permits.
Here is how the Board described its approach to the Sullivan Courthouse redevelopment at a meeting on April 29 of this year:
“And the way the law works is it says in the use Zoning Ordinance there are criteria for granting that we need to consider before granting each of those permits. And I'm going to go through those for you in a minute. So we're trying to make findings. If we can make those findings, we are obligated to issue the Special Permit."
Then last month, as the Board deliberated the Courthouse matter, the large project review standards were described as follows:
"The criterion is not that you have to do everything on the list; the criterion is that you do the best you can."
And when reviewing the 75 New Street project in the Fresh Pond area on May 20, here is how the Board articulated its standard:
“So there are a number of Special Permits that are being requested by the project. Each of those Special Permits have certain criteria written into the Ordinance and if we find that they meet the criteria, then we are obligated to grant the Special Permit. That's the way the law works.”
In reality, the law can be much more nuanced than that – Article 19 of our zoning code has a provision for the Board to consider whether the "interests of the city are being served" by any given large project – and the general provisions of Article 10 make it clear that any project seeking a special permit may be rejected if the Board concludes that it will harm the "integrity of the district" or otherwise go against the public interest.
Thus, the Board is never "obligated" to grant special permit relief just because an applicant/developer satisfies a checklist. Rather, the Ordinance empowers the Board to consider the broader interests of our city and its people – and state law says that the Board has the "full range of discretion" in rendering its decision.
In the case of the Sullivan Courthouse, the Board was presented with ample evidence to support the denial of the special permit, but residents' concerns were practically brushed aside, with one Planning Board member actually stating that the Board's job was, "to not blow this out of the water from an investors' point of view."
Overall, I appreciate the city's willingness to improve the process at the planning board – the City Manager has promised new members along with a continued dialog for reform – but as we move forward with this process, I think we also need to push for an acknowledgement that the Planning Board does indeed have the discretion to deny applications for special permit zoning relief.