Posted by: Patricia Salkin | August 15, 2014

MA Land Court Holds That a Town May Adopt a Bylaw Providing For Immediate Appeal of a Site Plan Review Decision

Plaintiff M & K Partners LLC appealed a decision by the Stoughton Planning Board to grant site plan approval to the Van Dam defendants for the construction of an industrial building on property directly abutting M & K’s. The Van Dams, joined by the board, have moved to dismiss the complaint, contending that the court lacked jurisdiction over the appeal because it is premature. They also claimed that M & K is not sufficiently “aggrieved” to have G.L. c. 40A, § 17 standing, and that their site plan application is “petitioning activity” protected by the anti-SLAPP statute, G.L. c. 231, § 59H, and that M & K’s appeal is a violation of those protections.

Under Article XIV (Site Plan Review) of the Stoughton zoning bylaw, “the appeal of any decision of the Planning Board hereunder shall be made in accordance with the provisions of MGL c. 40A, § 17. The court held that a town may adopt a bylaw providing for immediate appeal of a site plan review decision, even if it is of the “non-discretionary” type otherwise not appealable until issuance of a building permit, and that this is such a bylaw. Furthermore, despite the contention that M & K was not sufficiently aggrieved, at least one of the impacts alleged by M & K as directly affecting its property relates to drainage—an environmental issue, specifically addressed by the site plan bylaw. Since the Van Dams did not offer any evidence to rebut M & K’s presumption of standing, the court dismissed Van Dams’ contention on standing. In regards to the G.L. 231, § 59H (the so-called “anti-SLAPP” statute) claim, the Van Dams stated that this action is groundless, “and a mere pretext to intimidate and harass the Van Dams as the result of the Norfolk Superior Court Matter.” However, M & K raised several objections in this appeal (e.g., those related to drainage and, perhaps, to process) which, if proven, would warrant relief—a remand to the board for further explanation or action, and perhaps substantial changes to the site plan. Because the Van Dams have not submitted any admissible evidence to rebut these claims, the court dismissed its motion to dismiss.

M&K Partnership LLC v Scardino, 2014 WL 3798081 (Mass. Land Ct. 7/30/2014)

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