If you’re seeking a special permit for a project, be prepared to prove that your proposal complies with the town’s bylaws.

First things first. What is a special permit?

Generally, a special permit allows an applicant to use land for purposes that are desirable or necessary, but that do not comply with the applicable zoning regulations. For example, a developer who wants to construct an apartment complex in a district zoned only for single-family residences may, under certain circumstances, qualify for a special permit that would allow the nonconforming use.

How do you get a special permit?

That depends on the town’s bylaws. To get a special permit, the applicant must follow the procedure established in the applicable bylaws. Typically, this will involve filing an application with the town’s zoning board of appeals or planning board. In some cases, the application will be opposed by abutting landowners who would prefer that the town limit development to uses that strictly comply with the its zoning bylaws.

So, who bears the burden of proving that the applicant’s proposed use complies with the bylaws?

According to the Appeals Court, the applicant bears the burden. In Fish v. Accidental Auto Body, Inc., decided last month, the Appeals Court held that during all phases of the application process – from initial approval by the zoning board of appeals to subsequent appeals in the trial and appellate courts – the applicant must affirmatively demonstrate that its proposed use complies with the town’s bylaws.

In Fish, an auto body shop applied for a special permit to construct an auto repair facility in a district zoned for mixed residential and commercial use. Residential abutters opposed the issuance of the special permit because the shop’s proposed operations would have caused the release of toxic molecules into the air. The abutters argued that this proposed use violated a bylaw that prohibits any use that would “adversely affect public health of safety.” A Superior Court judge rejected this argument, however, because the abutters could not prove that the toxic molecules would have caused adverse health consequences at their properties approximately 75 feet away from the proposed facility.

On appeal, the Appeals Court concluded that the Superior Court judge had it exactly backwards. It held that according to the town’s bylaws, the applicant – not the abutters – shouldered the burden of proof on the question of whether the proposed use complied with the bylaws. Because the auto body shop failed to introduce any evidence that its operations would not affect the abutters’ health and safety, the court annulled the issuance of the special permit.

What does this mean for developers and project opponents?

The Fish case makes it clear that where a town’s bylaws protect certain rights – even broad ones like health – the applicant bears the burden of showing that its proposed use will not conflict with those rights. In certain cases – particularly those where the proposed use’s impact on health is not well understood – the applicant faces a steep uphill battle. In these cases, the applicant cannot simply rely on the fact that project opponents have not produced definitive evidence that the proposed use will adversely impact health or other rights. Instead, the applicant should come to the local ZBA armed with a well-supported expert opinion and be prepared to prove that the proposed use complies with all applicable bylaws.

From the standpoint of project opponents, the Fish decision is a victory. Simply by claiming that a proposal violates a broad right provided for in the bylaws, opponents can force developers to shoulder the heavy (and expensive) burden of proving a negative.

The lesson for all involved: Read and understand the applicable zoning bylaws before bringing or opposing an application before the local authority. The bylaws control, and understanding them early in the process can be a significant advantage, no matter which side of the fight you may be on.