Appeals Court Strikes Weston Zoning Bylaw Provision for Granting Unlimited Discretion to Board

Beveridge & Diamond, P.C., April 2007

An abutter challenge to a special permit for storage of items related to property owners’ landscaping and snowplowing business on their residentially zoned property resulted in the Appeals Court striking the provision of the Weston Zoning Bylaw that authorized such a permit in Fordham v. Butera, 68 Mass. App. Ct. 907 (2007).

The invalidated Bylaw provision authorized the Board to issue a special permit in the single-residence district for “storage of vehicles, materials, supplies and equipment in connection with commercial or business activities” principally carried on in Weston that provide “services essential to the uses of premises permitted in the residence districts.”

The challenged permit holders, the Buteras, secured a special permit in 1995 allowing them to store on their residentially zoned property a landscaping trailer, a truck, and tools used in a landscaping and snowplowing business that primarily (but not exclusively) served Weston residents.  In 2003, an abutter sought enforcement of the permit, arguing that additional items not listed in the permit were being stored on the property.  The Board of Appeals in 2003 issued an amended permit to allow storage of multiple trucks, trailers, plows, tires, and other equipment on the property.  The abutter’s appeal of the amended permit included a challenge to the provision of the Bylaw authorizing such a special permit. 

The Court agreed with the abutter that the Bylaw provision contained no standards to guide the Board’s exercise of discretion, and as such, it was invalid.  The Appeals Court held that where a Board is authorized to act with “untrammeled discretion” or via “unbridled fiat,” the Bylaw cannot stand. 

The Court’s decision voided the Board’s 2003 decision amending the Buteras’ permit, the subject of the appeal.  The original permit was never challenged, and therefore the Buteras could continue to use their property pursuant to the terms of that 1995 permit.

For more information, please contact Krista Hawley at khawley@bdlaw.com.