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- Title
Evaluating De Novo Review of Municipal Land-Use Decisions in New England: The Consequences of Starting Anew.
- Authors
Loin, Andrew
- Abstract
In Town A, a real estate developer appears before the municipal landuse board in pursuit of a special permit. The developer has a strong relationship with the members of the board and appears before them multiple times each year. The board grants the special permit even though the developer failed to present enough facts to give the board a reason that was not arbitrary or capricious. An interested neighbor brings suit against the developer and the municipal board in court, challenging the board's special permit grant. If Town A is in Massachusetts, the judge will conduct a trial de novo and hear facts that were not presented to the municipal board. If Town A is in Connecticut, the judge is limited to considering the facts that were presented to the municipal board. Therefore, if the developer presents facts that provide a non-arbitrary or non-capricious reason for the board's decision, then in Massachusetts, the judge will not disturb the board's grant of a special permit and in Connecticut, the judge will reject the grant and find that the board's decision was arbitrary and capricious on the facts before it. In this scenario, the applicable standard of review has a direct impact on the result of the appeal. Like Connecticut, a plurality of the states apply a very deferential standard to municipal land-use appeals, while a minority of states, including Massachusetts and Vermont, do not. A trial de novo in these circumstances weakens the authority of municipal government and creates a theoretical advantage for parties with more financial resources and experience. Technological advances alleviate concerns over the record produced by the municipal board and grant municipal boards the tools required to create a record upon which the judicial body hearing the appeal may rely. This article will investigate the standards applied in the New England states (Massachusetts, Connecticut, Vermont, Rhode Island, and New Hampshire) and consider the consequences of allowing, or even requiring, the court to conduct a trial de novo when hearing a municipal land-use appeal. The article will then call for legislatures in states that allow for, or require, a trial de novo to amend their statutory provisions, which provide for appeals of municipal land-use board decisions, to restrict judges from hearing the matter de novo and to limit consideration of the matter to the facts originally presented before the municipal board.
- Subjects
MASSACHUSETTS; CONNECTICUT; MUNICIPAL government; JUDGES; LEGISLATIVE bodies
- Publication
Urban Lawyer, 2024, Vol 52, Issue 3, p399
- ISSN
0042-0905
- Publication type
Article