Exploring How Municipal Boards Can Settle Appeals of Their Land Use Decisions within the Framework of the Massachusetts Open Meeting Law
R. Lisle Baker
Suffolk University Law School
Suffolk University Law Review, Vol. 44, p. 455, 2011
Suffolk University Law School Research Paper No. 12-49
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. 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.” 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. 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.
Number of Pages in PDF File: 23
Date posted: November 2, 2012