Don Pinto Quoted in Massachusetts Lawyers Weekly: Judge ‘Annuls’ ZBA’s Bid to Block Housing Development

Excerpted from the February 6, 2025 edition of Massachusetts Lawyers Weekly.

At issue was whether the Concord (Mass.) Zoning Board of Appeals could use its earth removal permitting authority to block a proposed housing development that complied with applicable bylaws and had been approved by the local planning commission with conditions that had later been ruled invalid. Land Court Judge Howard P. Speicher said, “no.”

Firm client Symes Development & Permitting, the plaintiff in the case, proposed building 18 single-family, market-rate homes on an eight-acre lot in Concord. The proposal complied with the town’s rules and regulations for subdivisions, as well as the dimensional requirements of the Concord Zoning Bylaw.

When Symes went before the ZBA for a permit to remove more than 60,000 cubic yards of earth for purposes of grading the hillside property, his permit was denied on the ground that the natural features the developer proposed to remove in the grading process served as noise buffers for neighboring properties. The plaintiff appealed the ZBA’s denial of the earth removal permit.

Following a 2024 bench trial, Judge Speicher ruled that there was no credible evidence supporting the ZBA’s conclusion that the plaintiff failed to meet the bylaw’s factors for the issuance of an earth removal permit.

Firm land use and litigation partner Donald R. Pinto Jr., representing Symes, stated, “It’s important the court recognized that this case is an example of the reason why there’s a housing crisis in Massachusetts. It’s because boards like the Concord Planning Board and now the Concord Zoning Board of Appeals, if they want to, have many ways to slow down or stop a project.

“We were able to prove at trial that we met the three specific criteria in the earth removal special permit bylaw. The court found that it was improper for [the ZBA] to then apply a separate set of criteria — which are not specific to earth removal and which are much more subjective — to exercise its discretion to deny the permit on the grounds that it was not a good thing for the town, generally speaking, as opposed to finding some fault for the earth removal plan for this particular site.”

Don also pointed out the significance of the judge directly ordering the relief sought by the client rather than remanding the matter for the ZBA’s reconsideration. “The court does have the power to directly order issuance of the permit, if the court determines that no rational view of the facts supports the board’s decision and a remand would simply postpone an inevitable result, which is what Judge Speicher decided here,” Pinto said.

Click here for the complete article by Massachusetts Lawyers Weekly author Pat Murphy.

Don Pinto has more than 35 years of experience as a civil litigator with a focus on complex real estate and land use disputes. He handles cases at the trial and appellate levels in the state and federal courts and before administrative agencies. Don is also the founder, editor, and one of several authors of Massachusetts Dirt and Development Law, the firm's real estate law blog.