The issue: whether a special permit for an auto body shop should have been issued without the applicant proving that the shop would not decrease safety and air quality for abutting residences.
The Mashpee (Mass.) Zoning Board of Appeals (ZBA) had granted a special permit for a proposed body shop to be housed in a building “74 feet from plaintiffs’ northern property line,” where the shop’s work would include spray painting repaired vehicles from within a paint booth. Plaintiffs appealed the ZBA’s decision to Superior Court, where “the auto body shop offered no expert testimony regarding the safety of the spray paint used to paint vehicles, how long the toxins would take to reach plaintiffs’ property, or whether there were any potential health risks.” The Superior Court affirmed the board’s grant of the special permit.
On appeal, however, the Appeals Court found that the lower court judge “wrongly put the burden of proof on the project opponents rather than the applicants.”
Firm real estate, land use, and litigation partner Donald R. Pinto, Jr. called the decision a “good reminder that while the standard of review for special permits is broadly deferential to the local board, the permit-holder still must prove it has met each requirement specified in the zoning bylaw.”
In this case, the bylaw explicitly required the board to find that the proposed use complied with state and local regulations and that it would not adversely affect public health or safety or decrease air quality. “In other words," Don noted, "compliance with the law alone isn’t enough.”
The complete article can be found in the June 10, 2019 issue of Massachusetts Lawyers Weekly.