Exhaustion, the record, and a standard of review that gives the board most of the argument.
Esshaki Legal Media TeamCurrent as of November 2021
Challenging a local land use decision is largely an exercise in procedure, and
most challenges fail on procedure rather than on the merits.
Exhaust administrative remedies. An appeal usually runs first to the zoning
board of appeals, then to a court. Filing in court without exhausting is
dismissed, and the exception for futility is narrow.
Deadlines. Short — commonly twenty-one to thirty days from the decision, and
in some systems from the filing of the decision rather than from its
announcement. They are generally jurisdictional.
Standing. A challenger must show special damages different in kind from
those suffered by the community generally. Proximity, and specific impacts on
use and value, are the usual proof. Generalized objection to a project is not
enough.
The record. Review is on the record made below. Evidence not presented to the
board is not considered, which means the objections, the expert reports and the
factual submissions must be made at the hearing.
Standard of review. Whether the decision was supported by competent,
material and substantial evidence on the whole record, was procedurally proper,
and was within the body’s authority. Courts do not reweigh evidence.
Constitutional and statutory claims — takings, due process, religious land
use, fair housing — may proceed on different tracks, with different ripeness
requirements.