Topic: Zoning Board of Appeals/Withdrawal of Appeals

Topic: Zoning Board of Appeals/Withdrawal of Appeals

Author: Robert S. Mangiaratti

Date: 10/28/18

Dear Members of the Zoning Board of Appeals:

You requested an opinion about how the board should handle a case in which the petitioner has formally withdrawn his appeal. I understand that a certain individual identified as “Smith” filed an appeal with the zoning board of appeals challenging the decision of the building inspector to issue a building permit to an individual named “Jones”. Smith’s petition was duly filed in accordance with M.G.L. c. 40A, §8. The board published notice of a hearing and notified abutters. Prior to the hearing, however, Smith and Jones worked out a settlement and Smith wrote to the board withdrawing his petition. You asked what the board should do with the petition in these circumstances.

The board of appeals generally performs a quasi-judicial function Mullin v. Planning Bd. of Brewster 456 NE 2d 780 (1983). In that capacity, the board cannot act on any issue unless a petitioner formally submits the issue to the board. I find nothing in the law that limits or restricts the ability of a petitioner to withdraw an appeal of a building inspector’s decision from a zoning board of appeals. Without a petitioner presenting the case, there is nothing for the board to consider. Consequently, I recommend that you accept the petitioner’s withdrawal and dismiss the case without opening the hearing or taking any further action.

It is important to note that this advice applies only in the case of a withdrawal of an appeal of a building inspector’s decision. In the case of a variance or special permit application, the second paragraph of M.G.L. c. 40A, § 16 sets forth specific conditions with respect to withdrawal of a petition. In the case of a variance or special permit application, a petition may be withdrawn without prejudice only if the withdrawal is requested prior to publication of the notice of the public hearing. If the withdrawal request is after publication, the withdrawal would be with prejudice unless the board expressly approves a withdrawal without prejudice. The issue of whether a petition is withdrawn with or without prejudice is relevant to when the petitioner may re-apply for the same relief. If a matter is withdrawn with prejudice, the petitioner could not generally re-apply for two years.[1]

The statute does not address the timing of a withdrawal by a petitioner who is appealing the decision of the building inspector. Consequently, such a withdrawal can be made anytime without prejudice.

I hope that you find this information useful. Please contact me if I may be of any further assistance.

[1] A petitioner may re-apply within two years of a denial or a withdrawal with prejudice if the board by a two-thirds vote finds specific and material changes in conditions and all but one of the members of the planning board consents to the re-application.