A recent Federal District Court decision highlights the distinction between the supermajority vote of a Special Permit Granting Authority that is needed to issue a Special Permit and the majority vote of the Board of Selectmen that is needed to defend and settle litigation over the denial of that permit. The Planning Board of Hamilton considered whether to grant a Special Permit to an applicant for a cell tower. The Board voted 4-3 to approve the Special Permit with conditions, but M.G.L.c.40A, §9 requires approval by a 5-vote supermajority, so the application was denied.
The applicant appealed under the federal Telecommunications Act and M.G.L.c.40A, §17 to Federal District Court, naming, as defendants, the Town, the Planning Board, and the Planning Board members in their official capacities only. A majority of the Planning Board, the same four who voted to grant the permit, refused to authorize a defense of that action. The Board of Selectmen therefore filed an answer and appeared in the Town’s defense. The three members who voted against issuing the Special Permit hired private counsel, who filed an answer on their behalf. The Selectmen then moved to strike the answer on behalf of the three members and, with the applicant, jointly filed an agreement for judgment that incorporated the terms favored by the Planning Board majority.
The Court held that the minority members of the Board lacked standing to participate separately in the litigation and to challenge the agreement for judgment. He cited to the Town Bylaws that authorized the Board of Selectmen to prosecute, defend, and compromise all litigation to which the Town is a party, defended by Town Counsel. The bylaws are consistent with state law, the Court noted. No statute authorizes the Planning Board members to hire separate counsel or to seek to represent the Board themselves. The Court therefore held that the minority Planning Board members’ answer be struck. The decision is Varsity Wireless Investors, LLC v. The Town of Hamilton, No. 17-11826-MLW (D. Mass. March 31, 2019).