Substantively, the Appeals Court’s recent decision in Shirley Wayside L.P. v. Board of Appeals of Shirley (pdf) reflects a routine zoning case.  Here’s what happened:

  • The defendant Board of Appeals denied a request to expand a mobile home park, a lawfully non-conforming use.        
  • The Board’s written decision cited typical reasons for denying the permit:  impacts on the school system, effects on wetlands, traffic, density, etc. 
  • The Land Court vacated the Board’s denial, finding it arbitrary and capricious because, based on the evidence presented at trial, no reasonable board could have drawn the same conclusions.  For example, the mobile home park is for adults 55 and over, and thus could not have had a material impact on the school system, as the Board had found.
  • The Appeals Court reversed the Land Court and affirmed the Board’s denial, finding that, while some of the reasons the Board cited for denying the permit were inadequate, density was a legitimate basis for denial, where the existing development was already more dense than allowed by Board of Health regulations governing mobile home parks, and was significantly more dense than the single-family use allowed in the same zoning district.

So, this case seems pretty routine – a local board denies a permit, the Land Court reviews the board’s decision de novo and reverses the denial, but on further review, the Appeals Court sides with the Board and affirms the denial.  What is striking about this decision is that the Appeals Court – where appeals are almost invariably decided by the same three-judge panel that hears the oral argument – decided this appeal on a 3-2 vote.  Footnote 1 to the decision indicates that the case was initially heard by three judges, two of whom agreed with the Land Court that the Board’s denial should be reversed.  However, when the draft opinion was circulated to the other Appeals Court judges for review, a decision was made to enlarge the panel to include two more judges, both of whom thought the Board’s decision was correct.  As a result, what would have been a 2-1 vote to reverse the Board’s denial of the permit became a 3-2 vote to affirm the denial. 

The authority for this unusual procedure is Rule 24(a) of the Massachusetts Rules of Appellate Procedure, which states, rather cryptically, that:

“Whenever the justices before whom a law question has been heard so desire, others of the justices may be called in to take part in the decision, upon a perusal of the record and briefs, without reargument.”

We don’t quite know what to make of the Appeals Court’s use of the Rule 24(a) procedure in Shirley Wayside, L.P.  It’s good to know that the circulation of draft decisions to the full Appeals Court bench can result in a turnaround of what otherwise might have been an incorrect decision.  But the fact that the court chose to employ this unusual procedure here is surprising, since the case seems to be a routine dispute that could have gone either way.