With all the recent public hearings for special permits, you might be curious on what basis the Commonwealth says local permitting authorities should decide. Here is a brief compilation of grounds based on expert opinion and court decisions. Did you know a Special permit granting authority possesses broad discretion. Even if a special permit could lawfully be granted, the permitting authority has discretion to deny the permit. If the permitting authority has acted correctly or abused their authority is decided on a case by case basis. Following are a few examples of why the permitting authority’s decision was upheld and overturned.

1. An Appeals Court decided that the protection of natural resources and preservation of community amenities are valid reasons to deny a special permit
2. A Zoning Board of Appeals (ZBA) denied a special permit to one of two applicants. While both applications met the requirements for a special permit, one was denied on grounds that were unrelated to zoning issues. The Court vacated the ZBA’s because it was deemed arbitrary and capricious.
3. An application to construct a warehouse and office building on a parcel of land that was within a flood plain district and bordering a river. The board denied the application on the basis that there would be an adverse effect on the flood control characteristics of the land and the town’s water storage capacity. The Appeals Court held that the board could properly take into account the purpose of flood plain regulations when making its findings. Reasonable persons could differ as to the severity of danger, the board’s decision was not arbitrary and was upheld.
4. When a zoning bylaw directs the special permit granting authority to consider neighborhood character as part of its decision-making process, the board is authorized to deny a special permit if the application doesn’t meet the criteria. An applicant sought a special permit to operate a beer and wine store in a strip mall. The board denied the request based on the proximity of the site to several schools and a day care center. The Appeals Court upheld the decision because it was based on a standard permitted by the bylaw.
5. Permitting authority’s reasons for denial must be based on evidence in the record. It cannot just conclude, for example, that an application would be inharmonious with the neighborhood. The Board’s decision should be based on evidence. For example, the permitting authority considers: is the proposal “in harmony with the Bylaw’s general intent and purpose — will not be detrimental to adjacent uses or to the established or future character of the neighborhood —will not create undue traffic congestion or unduly impair pedestrian safety” and will not strain municipal facilities, subject the area to hazards affecting public health, safety or general welfare, and will protect wetlands.
6. A permitting authority may consider the impacts on people, animals, and natural resources, so long as it does so in a manner based on evidence.