Exploring how municipal boards can settle appeals of their land use decisions within the framework of the Massachusetts open meeting law.

• Author: Baker, R. Lisle
• Position: The Massachusetts Constitution of 1780

1. INTRODUCTION

   One of the enduring issues in zoning law is how to resolve appeals involving the grant of zoning special permits or other discretionary decisions made by the municipal boards that have jurisdiction over some aspect of the private use of land. While their decisions are made in public, and the appeals of these decisions are also decided by a public process, such as a court or an administrative agency, the resolution of these appeals without litigation or administrative appeal poses challenges because resolution without adjudication traditionally requires some confidentiality in order to encourage frank conversation about how a settlement might be achieved.

   While private lawsuits are settled all the time outside of public view, such settlement poses special problems for municipal boards and commissions making land use decisions because as public bodies, under the provisions of the Massachusetts "sunshine law" requiring open meetings, they are expected to make their decisions in public following prescribed procedures. (2) Because of this open meeting requirement, the give and take of settlement can be difficult to do, meaning that playing an appeal out in court or the relevant appellate agency appears to be the only alternative to resolve the matter at hand. But these appellate processes are costly, time-consuming, and likely to make the appellant, the members of the board, or the affected public unhappy with the outcome.

   Settling these cases, rather than going to court or through an administrative review, therefore remains an alternative worth pursuing. Abraham Lincoln said: "Discourage litigation. Persuade your neighbors to compromise whenever you can.... As a peacemaker the lawyer has superior opportunity of being a good man." (3) But how is the municipal lawyer for the local board, or even the lawyer for the appellant, to follow Lincoln's advice so that zoning and other land use appeals can be settled productively by the local body that made the original decision?

   The limited available scholarship has focused primarily on what happens after settlement. (4) This article is an attempt to explore issues involved in the settlement process itself, as well as its aftermath. It draws on the experience of one municipality--Newton, Massachusetts--in which this author worked to assist successful settlements while serving as the President of the Board of Aldermen (the Board). The article also discusses the Open Meeting Law (OML), including some of the recently enacted changes to it. This article concludes with some recommendations about how the Attorney General--now charged with advising, interpreting, and enforcing the new OML--can play a positive role in encouraging the settlement of land use appeals.

   The approach recommended is a multi-step process, the background for which is discussed below. In summary, however, first, begin in an open meeting to allow the local board to go into executive session to lay the foundation for settlement discussions by exploring the risks and opportunities for settlement to be discussed candidly with municipal counsel. Second, undertake or respond to settlement overtures between counsel for the appellant and counsel for the local board, whose decision has been appealed, to lay the foundation for further settlement conversations either directly between appellant counsel and counsel for the local board or perhaps aided by one member of the board. If such conversations are to go on with the board as a whole, have them occur in an executive session with the assistance of a mediator. Third, return to the local board to discuss any proposed settlement with municipal counsel, again in executive session, without the appellant or its counsel present. Fourth, present the proposed settlement in an open meeting of the board, followed by a public hearing and subsequent public vote, with the same voting supermajority required for settlement as for the original decision. Last, present the settlement formally voted on to the court in which the appeal has been lodged, if the court has retained jurisdiction over the settlement, for ratification. Otherwise, simply have the appeal withdrawn or dismissed with consent of the appellant and the local board.

2. THE FRAMEWORK FOR DECISIONS ABOUT THE USE OF LAND INVOLVING LOCAL BOARDS

   Massachusetts allows many local boards and commissions to make decisions about the use of land. (5) When these local boards make decisions that produce an appeal, however, the usual outcome is governed by the provisions of law relating to administrative or judicial review of such decisions. (6) Unfortunately, no clear path exists, short of litigation, for resolving such appeals. In order to provide one, it may be helpful to use the zoning special permit as an example, drawing on recent experience in Newton from two case studies of successful resolution.

   A. The Zoning Special Permit as an Example

   Special permits grant an applicant the opportunity to use land in a manner not available as of right under the municipal zoning ordinances or by-laws. Such permits involve the exercise of discretion by the special permit granting authority for the city or town. (7)

   After an application for a special permit is filed, Massachusetts's zoning law requires that a public hearing be held regarding the site's proposed use within sixty-five days of the special permit application being filed with the city (or town) clerk. The local special permit granting authority (SPGA) must issue its formal decision within ninety days of the close of the public hearing on the application. (8)

   Under Newton ordinances, the Board serves as the SPGA. (9) The Board's Land Use Committee (the Committee), composed of eight of the twenty-four Board members, holds public hearings and makes preliminary decisions on a special permit application. (10) The Committee customarily hears the applicant present the permit application, as well as testimony from the public. The Committee then closes the public hearing. once the hearing is closed, the Committee meets in an open working session to decide how to proceed with the application, relying on advice from the Newton Planning and Law Departments. The Committee then makes recommendations and prepares Board orders relating to an application. These orders are then reported to the full Board for decision. Two-thirds of the full Board--sixteen aldermen--must vote in favor of the special permit application for it to be granted. (11)

   While the Newton Board is primarily a legislative body, composed of sixteen at-large and eight ward aldermen elected every two years, in its special permit-granting role the Board is acting in a "quasi-judicial" capacity. (12)

   B. Introduction to the OML Applicable to Land Use Decisions and Appeals

   In Massachusetts, as in many jurisdictions, the actions of public bodies, like the Board or its committees, have for years been subject to the OML. (13) In Massachusetts, the OML has been applied to local land use decision-making--such as variances, extensions of non-conforming uses, and special permits--by a zoning board of appeals or other zoning decision-making body. (14) The OML was most recently reviewed and revised, with new portions becoming effective on July 1, 2010.

   More specifically, chapter 30A, section 18 of the Massachusetts General Laws defines a "public body"--to which the OML applies--as "a multiple-member board, commission, committee or subcommittee within the executive or legislative branch or within any county, district, city, region or town, however created, elected, appointed or otherwise constituted, established to serve a public purpose." (15) Section 20 of the same statute requires that "all meetings of a public body shall be open to the public." (16) A "meeting" is further defined as "a deliberation by a public body with respect to any matter within the body's jurisdiction," with several exceptions, such as an onsite inspection of a project, or being in attendance at a meeting of another public body so long as members do not deliberate. (17) "Deliberation" is defined as "an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction." (18) "Quorum" is defined as "a simple majority of the members of the public body, unless otherwise provided in a general or special law, executive order or other authorizing provision." (19) If a meeting of a public body is held without reaching the required quorum, it still must meet OML requirements if it is just a subterfuge to avoid those requirements. (20) The net effect is to provide that--unless an open meeting exception applies--meetings of a majority of the members of a local board making land use decisions must be conducted in public.

   The enforcement of the OML for local governments is now under the authority of the Attorney General's office, rather than local district attorney's offices, as in the past. The Attorney General has the ability to take and investigate complaints. (21) The Attorney General--or a court that has the same powers as the Attorney General--may enter an order requiring compliance with the law at future meetings. (22) Furthermore, the Attorney General may enter an order invalidating any action taken at any meeting in which the law has been violated. (23) Also, the Attorney General may compel compliance, mandate training, or impose a civil penalty upon the public body up to $ (1000) in the case of an intentional violation. (24) Finally, in addition to the Attorney General's power to interpret or make rules relating to the OML, the Attorney General may issue written rulings or advisory opinions. (25)

   C. Exceptions to the OML Requirements Relevant to Settling Land Use Appeals: The Need for Confidentiality as well as Transparency

   The challenge that the OML poses is that it effects a legislative policy "which requires the members of a board or a...