Making Frivolous Land Use Challenges Tougher To Pull Off

In “The Tyranny of the Abutter” at JDSupra, Boston attorney Robert Ruzzo muses on a way Massachusetts has proposed to streamline and better democratize the process of court challenges to land use.

Land owners have a lot of power when the land is adjacent to a proposed use. In the eyes of the law, this classifies them “abutters” – because their land abuts, or touches the land in question that has the new proposed use. Abutters have an extra say in what goes on in a community by leveraging their legal status as owners, and can challenge a permit for a particular use on abutting property in court.

But is this the best way to express property rights?  Does it place too much power in the hands of landlords who just seek to tie up a competing development for years, hoping that future market shifts will kill the proposal ultimately? That’s the question Russo kicks around in a thoughtful piece that looks at what one state is doing to look at the problem of frivolous challenges to state permitting processes.

Last year, the Massachusetts Housing Partnership (MHP) handed in a legislative proposal that contained an idea that originated with the Mitt Romney gubernatorial administration.  Why not, the proposal goes, establish a three-person permit appeal review council, and have parties submit briefs to the council on the merit of a given permit appeal?  As Ruzzo puts it:

The proposal, while intriguing, is not entirely radical. First, no one actually loses their right to a day in court. The costs of bringing a less than meritorious appeal are simply increased. According to MHP, the concept of screening out “frivolous” medical malpractice lawsuits by using a tribunal has been in play since 1976. The requirement to post a bond in order to bring an appeal is also a part of our existing Smart Growth law (Chapter 40R). Moreover, Massachusetts has for a number of years countenanced the notion that certain litigation may be against public policy.

The discussion of a review panel to pre-screen abutter appeals should continue. A few observations: (a) the composition of the panel should continue to be examined; (b) an exemption for neighboring municipalities is warranted; and (c) the proposal should have a built in reporting mechanism which would track the ultimate disposition (or non-pursuit) of the appeals that come before it. It will be essential to know and closely monitor the panel’s track record. If appeals subjected to a bonding requirement are ultimately successful on the merits in great numbers, the legislation would need to be revisited.

Obviously, one party’s frivolity could easily be another party’s diligence — and when a conflict of substance arises in land use, we always have the courts, expensive and lengthy as they tend to be, to settle such questions. In the end, it is true that the right to develop property needs protection — or at least a second look — given by local civic structures who can best make a determination on wether to err on the side of NIMBY concerns or not.

Leave a Reply