Posted by: Patricia Salkin | January 26, 2008

Town Zoning Bylaw Provides Necessary Specificity in Delegation of Standards for Special Permit Review

When a local legislative body delegates to another body the authority to review applications for special use permits, the delegation must contain adequate standards to guide the board in making a decision so as not to give that board unbridled discretion. The Massachusetts Supreme Court recently reviewed a town zoning bylaw to determine whether the language of the bylaw provided appropriate standards of review.  

The section of the zoning bylaw provides in relevant part, “Storage for Commercial and Business Activities: In Single Family Residence Districts the Permit Granting Authority may issue Permits for the storage of vehicles, materials, supplies and equipment in connection with commercial or business activities principally carried on in the Town and providing services essential to the uses of premises permitted in the residence districts…”  See, Town of Weston Zoning Bylaw, sec. V.B.5.  In 1995 the Buteras were granted a special use permit allowing them to store, in a residential district, a landscaping trailer, a truck and tools in a barn, to be kept indoors at all times, as such items were used in connection with their landscaping and snowplowing business.  In 2003, they were granted an amendment to the permit to allow them to store certain additional vehicles, materials, supplies and equipment used in connection with their business.  

A neighbor alleged that the zoning bylaw lacked standards and therefore granted to the board untrammeled discretion in its decisions whether to grant or withhold storage permits. The Supreme Court of Massachusetts disagreed, finding that a number of standards or guidelines for review are contained in the zoning bylaw.  For example, the Court noted that the bylaw “set limitations as to both the geography and the kind of business for which a person might receive a storage permit.” Further, the Court found that the board’s authority is limited in the bylaw since it prohibits a permit for “any building or structure or any use of any building, structure or premises which is injurious, obnoxious, offensive, dangerous, or a nuisance to the community or to the neighborhood through noise, vibration, concussion, odors, fumes, smoke, gases, dust, harmful fluids or substances, danger of fire or explosion, or other objectionable feature detrimental to the community or neighborhood health, safety, convenience, morals or welfare.” The Court disagreed with the assertion that since the term “storage” was not defined in the bylaw, the delegation lacked specificity. The Court found that they bylaw applied to a specific types of use (e.g., storage), and that the bylaw need not include a definition of this word which is a common word with a well-understood ordinary meaning. 

Fordham v. Butera, 2007 WL 3274901 (Mass. Sup. Ct. 11/8/2007).   

Both the oral argument and the opinion can be accessed at:

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