MA Land Court Finds Lack of Evidence to Support Alleged Financial Conflict of Interest Where Board Member was Part-Owner in Competing Business

This post was authored by Touro Law student Thomas Brown ’20

Neighbors complained to the Town regarding the filling and grading of a 16-acre lot zoned for agricultural use. The Zoning Board of Appeals issued a Cease and Desist order to 429 Whitney St. Realty Trust (Defendant) regarding the activity and Defendant appealed.  Among other things, Defendant claimed that ZBA member Gerald Benson had a financial conflict of interest, thus invalidating the ZBA decision.  The complaint was based on Benson’s part ownership of CDM, Inc., which oversaw the Rowe Quarry project, one of the largest landfill operations in Massachusetts.  CDM’s and Benson’s involvement in that project rendered them direct competitors with 429 Whitney for the soil re-use materials that were used by 429 Whitney (thus giving Benson and CDM an incentive to halt Defendant’s work and use of such materials).

The Court found that although G.L. c. 268A Section 19 prohibits participation in decisions by municipal officials involving financial conflicts of interest, “the request for invalidation of a decision must come from the Zoning Board itself.”  While the Court could have reached the “conclusion that the Zoning Board decision was arbitrary and capricious based on a conflict of interest,” it declined to do so.   The Defendants failed to present evidence showing a conflict of interest, and the conflict issue was not listed in the joint pre-trial memorandum.  The Defendant bore the burden of presenting sufficient facts to establish a violation of the Massachusetts Constitution and failed to do so.

Ward v Rand, 2017 WL 2951639 (MA Land Ct. 7/10/2017)