Chapter 40A ZBA Appeal Process

You’ve done everything you thought you were supposed to do to secure local approval for your project. You’ve spoken with all of the neighbors. You’ve hosted community meetings. You’ve met with the building commissioner. You’ve hired your architect, your engineer, and your general contractor. In some instances, you have already been through site plan review and the local planning board. The last step in the permitting process for your project is to obtain a variance or special permit from your city or town zoning board of appeals (ZBA). You make your case to the ZBA, but the ZBA denies your request. You don’t need to abandon all hope. Instead, you can consider filing an appeal of the ZBA’s decision pursuant to G.L. c. 40A, § 17.

General laws c. 40A, § 17 permits “persons aggrieved” by a decision of the ZBA to file an appeal in either the Superior Court or the Land Court seeking to overturn the decision. The c. 40A appeals process is unique and is quite technical. First and foremost, the deadline to file a c. 40A appeal is twenty days after the ZBA’s decision has been filed with the city or town clerk’s office, which is usually soon after the ZBA has rendered its decision. This short deadline is strictly enforced and late filing by even one day is fatal to an appeal.

The complaint must name all individual members of the ZBA as party defendants and must list their home addresses in the body of the complaint. If the appellant is not the applicant, but an abutter or other interested party, the applicant must also be named as a party defendant.

Pursuant to c. 40A, § 17, the party aggrieved, or appellant, must allege that the decision “exceeds the authority of the board…and any facts pertinent to the issue, and shall contain a prayer that the decision be annulled.” The appellant must also attach to the complaint a copy of the ZBA decision being appealed. After the appeal is filed in either Land Court or Superior Court, the appellant must send the complaint via certified mail to each individual member of the ZBA at their home address. Next, the appellant must file an affidavit of service with the court confirming that the complaint was served on each individual member of the ZBA.

Interestingly, neither the municipal ZBA nor the individual members of the ZBA are required to answer the complaint. However, practically speaking, the filing of a ZBA appeal will usually prompt communication from the municipality’s counsel, which can lead to a productive discussion about settlement or discovery, whichever way the case proceeds.

The judicial standard of review on appeal is a hybrid. The reviewing court, whether in Superior Court or Land Court, grants deference to the ZBA’s legal conclusions and normally will not overturn a ZBA decision unless it is based on legally untenable grounds. However, the reviewing court uses de novo review of the ZBA’s factual findings and gives them little to no evidentiary weight. This hybrid standard of review gives appellants an advantage because they can present additional evidence to the reviewing court and are not bound by factual determinations made by the ZBA.

The ZBA appeal process is unique and is undoubtedly an uphill battle. Having the right attorney on your side is essential. Pierce & Mandell’s real estate and land use attorneys have years of experience with both ZBA appeals and applications before local municipal boards.

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