How Much Discretion Do Local Boards Have? At Least We Know It’s Not Infinite

Developers and others who appear before local boards know what an uphill battle it is to challenge decisions of those boards. After all, there’s a reason for the existence of the phrase “You can’t fight City Hall.” Of course, it’s never a good idea to fight City Hall unless you absolutely have to do so, but a recent decision from the Massachusetts Appeals Court gives some hope to those forced into that position by a board taking an extreme position.

In Pollard v. Conservation Commission of Norfolk, the local conservation commission, acting under its local wetlands bylaw, rejected a request for an order of conditions – a permit, to those of you outside Massachusetts – on the ground that the developer had not met its burden of demonstrating that the proposed work would not adversely affect a resource area. The developer had submitted a report by a consultant, in which the consultant opined that the project would not adversely affect the resource area and would comply with the bylaw.

The only evidence in the record before the commission was the report from the developer’s consultant. The commission took no other evidence. Instead, the commission simply concluded that the expert’s report was not credible. Since the developer had the burden of demonstrating compliance with the bylaw, the commission concluded that this was a sufficient ground on which to reject the permit application. 

The Appeals Court concluded otherwise.

While noting that the commission was not required to credit the developer’s expert, even though uncontradicted, the Appeals Court concluded that the commission was required to provide a basis for its rejection of the expert, noting that “evidence of a party having the burden of proof may not be disbelieved without an explicit and objectively adequate reason.” Since the commission had made no effort, either in its decision or in court, to explain its rejection of the expert opinion, the Court had no way to determine whether the commission “decision was arrived at with fairness and without predisposition.”

Developers cannot necessarily take this decision to the bank. As long as local boards provide some reasoned basis for their decision, a successful challenge will remain a long shot. However, where a local board truly ignores available evidence, there is some hope that courts will ensure that reason prevails.