Land Court judge calls for fix for site plan challenges.

Byline: Kris Olson

In an ideal world, the Legislature would pick up the gauntlet recently dropped by a Land Court judge and standardize the "hodge-podge of approaches taken by municipalities to site plan review," zoning attorneys say.

But not only do they not expect the Legislature to act anytime soon, they do not necessarily agree as to what the ideal tweak to G.L.c. 40A might look like.

In Corner, et al. v. Forest Delahunt Development, LLC, et al., a developer has proposed a complex in Rockland comprising three skating rinks with seating for 1,500 spectators, a 300-seat restaurant, and parking for more than 400 vehicles.

As might be expected with a project of such a scope, the developers have to obtain a number of different permits and approvals, and a group of abutters has mounted legal challenges to each of them. Among those challenges are pending Land Court appeals of the special permit for the use of the property and a variance for access to the property granted by the Rockland Zoning Board of Appeals.

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"The problem cries out for a legislative solution in the form of an amendment to G.L.c. 40A."

Judge Howard P. Speicher

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The subject of Judge Howard P. Speicher's recent decision was the Rockland Planning Board's approval of a site plan application, which the abutters contend is deficient both procedurally and substantively.

However, Speicher concluded that he could not even reach the merits of those arguments, given the state of the law.

Not yet ripe

Speicher noted that the Supreme Judicial Court in 1970 had recognized the authority of municipalities to "adopt reasonably flexible methods" for review and approval of site plans. That has led to a dizzying array of procedural and substantive choices, which recently prompted Speicher's colleague, Judge Robert B. Foster, to call site plan review "the unacknowledged ghost haunting land use law."

Of the challenges created by the mishmash of approaches to site plan review, none is more vexing than the need to determine the appropriate rules governing when, how and if site plan approval decisions can be appealed, Speicher wrote.

Though some cities and towns make clear that site plan approvals can be appealed in Land Court, Rockland is among those whose zoning bylaws do not speak to the issue of appeal rights.

In such a circumstance, there is controlling SJC precedent, with which Speicher is intimately familiar.

In 1999, then-attorney Speicher represented the plaintiffs in St. Botolph Citizens Committee, Inc. v. Boston Redevelopment Authority. The SJC told Speicher's clients that they needed to wait until a building permit had been issued to...