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Common Mistakes to Avoid When Applying for a Special Permit



Special permits allow property owners to use their land in a way that is not typically allowed by the local zoning regulations, but only if certain conditions are met. Too often developers and landowners underestimate the complexity and challenges of applying for a special permit, which can delay the process or even result in a denied application. Here are some common mistakes to avoid when applying for a special permit:


1. Failing to understand the local permitting requirements

Most states have a zoning act (in Massachusetts it’s MGL 40A), which sets forth the general rules for obtaining a special permit, but individual municipalities typically establish their own criteria and procedures for special permits. Before applying for a special permit, it's essential to understand the requirements set forth by the local zoning board. These requirements may vary depending on the type of permit you are seeking and the specific regulations that apply to the subject property. It's essential to carefully review the local zoning by-laws and ensure that your proposed use or development project meets all the requirements for the special permit. Don’t hesitate to contact local officials directly to ask for guidance, but a zoning and land use attorney that is familiar with local ordinances is going to be essential to making sure you aren’t wasting time (and money) on a project that doesn’t comply with all local requirements.


2. Submitting an incomplete or inaccurate application

Once you understand the requirements, it's time to prepare your application. While most municipalities require a simple application form, a complete application should also include a detailed description of the proposed use or development project, as well as any plans or drawings that illustrate the proposed changes. You may also need to submit a traffic impact analysis, development impact statement or other environmental studies, depending on the requirements set forth by the local zoning board. An incomplete application can result in many months of continuances, or even an outright denial. In Massachusetts, once a special permit application has been denied, it cannot be reapplied for within 2 years of the denial.


3. Failing to consider potential impacts on neighboring properties

One common mistake is failing to consider and address potential impacts on neighboring properties. Particularly if the proposed use is unique or novel for the area, you should prepare for local residents to have many questions or concerns. No special permit can be granted without a public hearing where members of the public have an opportunity to comment on your proposed use. Ignoring the public hearing process or failing to adequately prepare for it can result in a denied application. It's important to transparently and proactively engage the community on your proposal, and to come to the public hearing fully prepared to address any concerns raised by neighbors. Even after a special permit is approved, any person that is aggrieved by the zoning board’s decision, can appeal the permit approval and tie you up in court for months, or even years. An experienced zoning and land use attorney understands the art of public relations and can help you anticipate and navigate potential community opposition.


4. Failing to understand the scope of zoning board review

The zoning board (or other special permit granting authority) has broad discretion to approve or deny a permit for just about any reason so long as it is not illegal or “arbitrary and capricious”. In order to be successful, you must not only satisfy the criteria set forth in the local zoning ordinance, you must also understand the politics and dynamics impacting each board members’ decision. The members of zoning boards are generally volunteers with deep roots in the community and strong feelings about the development they want to see take place. A land use and zoning attorney can help you predict and address each board members’ priorities, while preventing the process from devolving into an unreasonable series of demands.


Contact Cable Fleisher & Sosebee today for help with your special permit application.

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