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June 06, 2024 Feature

Evaluating De Novo Review of Municipal Land-Use Decisions in New England: The Consequencesof Starting Anew

Andrew Loin

In Town A, a real estate developer appears before the municipal land-use board in pursuit of a special permit. The developer has a strong relationship with the members of the board and appears before them multiple times each year. The board grants the special permit even though the developer failed to present enough facts to give the board a reason that was not arbitrary or capricious. An interested neighbor brings suit against the developer and the municipal board in court, challenging the board’s special permit grant. If Town A is in Massachusetts, the judge will conduct a trial de novo and hear facts that were not presented to the municipal board. If Town A is in Connecticut, the judge is limited to considering the facts that were presented to the municipal board. Therefore, if the developer presents facts that provide a non-arbitrary or non-capricious reason for the board’s decision, then in Massachusetts, the judge will not disturb the board’s grant of a special permit and in Connecticut, the judge will reject the grant and find that the board’s decision was arbitrary and capricious on the facts before it.

In this scenario, the applicable standard of review has a direct impact on the result of the appeal. Like Connecticut, a plurality of the states apply a very deferential standard to municipal land-use appeals, while a minority of states, including Massachusetts and Vermont, do not. A trial de novo in these circumstances weakens the authority of municipal government and creates a theoretical advantage for parties with more financial resources and experience. Technological advances alleviate concerns over the record produced by the municipal board and grant municipal boards the tools required to create a record upon which the judicial body hearing the appeal may rely.

This article will investigate the standards applied in the New England states (Massachusetts, Connecticut, Vermont, Rhode Island, and New Hampshire) and consider the consequences of allowing, or even requiring, the court to conduct a trial de novo when hearing a municipal land-use appeal. The article will then call for legislatures in states that allow for, or require, a trial de novo to amend their statutory provisions, which provide for appeals of municipal land-use board decisions, to restrict judges from hearing the matter de novo and to limit consideration of the matter to the facts originally presented before the municipal board.


As Alexis de Tocqueville travelled America in the 1830s, he noted the importance of local governments in sustaining democracy. He devotes an entire chapter of his book, Democracy in America, to his reflections after encountering local governments in New England. De Tocqueville states: “Town meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it. A nation may establish a free government, but without municipal institutions it cannot have the spirit of liberty. However, the standard of review applied to appeals of municipal land-use decisions in Massachusetts and Vermont (including decisions made by boards in municipalities that de Tocqueville visited) strays from these ideals.

Across the country, municipal boards are tasked with handling land-use issues such as zoning, subdivision control, variances, and special permits. This local control is derived from the idea that local governments, those closest to the people, are in the best position to regulate the use of land to protect the health, safety, and welfare of the community.

This article examines municipal land-use boards, specifically zoning boards of appeal and planning boards (and their counterparts that differ in name but retain similar powers). These boards obtain their authority by grant from state legislatures. Each state has a state statute establishing the power of municipalities to create suchboards and different processes and standards of review to be applied in judicial appeals of municipal board decisions.

Massachusetts and Vermont have adopted a standard of review that is dismissive of the abilities of the municipal board. When an appeal in one of these states is filed, the court does not consider the municipal board’s record and acquires evidence anew, allowing not only what was presented to the municipal officials to be offered into evidence but also allowing new evidence to be considered.

In some jurisdictions, de novo review, as applied to these decisions, appears to be based upon early twentieth-century notions of the abilities of municipal boards, made of lay persons, to construct a record by which a court could consider an appeal. Today, municipal boards have access to different technological solutions, such as audio-video conference and recording software, that allow the board to capture a detailed record of its proceedings with great ease. This idea that a municipal board is incapable of producing a detailed record of their proceedings is contradictory to the very deferential approach that the judiciary typically applies when considering the legality of an administrative/quasi-judicial ruling.

The de novo standard of review, when applied to municipal land-use appeals, creates both separation of powers concerns and advantages for parties with more resources and experience. Because of a municipal land-use board’s unique authority, some state legislatures allow or require courts to review the decisions of these administrative/quasi-judicial boards de novo. While a plurality of state supreme courts that have ruled on the matter have held that requiring the judiciary to consider these appeals de novo violates separation of powers provisions in their respective state constitutions, the Vermont Supreme Court held that these boards are quasi-judicial entities, meaning that the requirement of de novo review is not transgressive of state provisions regarding the separation of powers.

De novo review can turn the proceedings before the municipal board into a rehearsal of sorts. By creating a process where the record before the board is given “no evidentiary weight,” parties do not need to treat the proceedings before the municipal board with the seriousness that the process requires. Parties can employ strategies and gamesmanship, taking advantage of the de novo standard. Additionally, the de novo standard can cause boards to not treat the municipal hearing with the level of care that they should, as the boards know a judge can hear the matter de novo at the trial court.

Of more concern, de novo review of municipal land-use decisions further advantages parties with greater financial resources and experience. De novo review allows for parties with financial resources to absorb the costs of project delay while litigation is pursued. This standard also allows parties who can afford litigation to not treat the municipal proceeding with the seriousness required, as the fact-finding is completed anew before the trial court. Repeat players who may have relationships with municipal boards, as well as those who are aware of the standard of review upon appeal, are also advantaged by de novo review, as boards may not develop full records due to a trusted relationship with presenters.

Part I of this article will discuss the history of land-use regulation and state zoning enabling statutes. It then will introduce the two different main approaches to handling land-use appeals: de novo review and the more deferential approach.

Part II of this article will investigate the standards applied in each of the New England states (Massachusetts, Connecticut, Vermont, Rhode Island, and New Hampshire). The differences in how New England state courts approach the review of municipal zoning authority decisions present a unique opportunity to evaluate the implications of the differing standards of review. Despite this long tradition of strong local government and deference to the decisions of the local populace, Massachusetts and Vermont have legislative schemes that have been interpreted as requiring de novo review. Connecticut and Rhode Island courts apply the traditional approach and rely only on the record of the municipal board, unless certain circumstances exist. New Hampshire’s state statute does not provide for de novo review but allows for very liberal discretion of what evidence can be considered by the court when hearing a municipal land-use appeal. These differing standards of review elicit a discussion as to whether courts should conduct a trial de novo when considering the appeal of a municipal land-use decision or whether the court should treat the municipal board akin to a state administrative agency.

In Parts III and IV, focusing on the arguments for and against de novo review, this article will then argue that allowing de novo review presents separation of powers, theoretical, and practical problems in the land-use appeal process. De novo review of municipal board decisions can infringe on the powers that the legislature has granted to municipal boards to make administrative/quasi-judicial decisions. Allowing for trial de novo of land-use appeals can turn the municipal board hearing into a “rehearsal” for the trial court, which can lead to interested parties strategically withholding evidence and objections before the municipal board, in full knowledge that an appeal will be pursued. This process also creates structural advantages for repeat players and parties with more financial resources who know what an appeal of a municipal land-use decision entails and that have the resources to fund an expensive appeal process.

To prevent courts from conducting a trial de novo, Part IV of this article will then call for legislatures in states that allow for, or require, a trial de novo to amend their statutory provisions to forbid it. Measures like those contained in a bill before the Massachusetts legislature would require courts hearing appeals of municipal land-use decisions to limit their factual investigation to the record of the municipal board. This article will touch upon technological requirements and other legislative mechanisms for ensuring the viability of the record created by the municipal board.

I. Trial De Novo and Land-Use Appeals

The roots of land-use regulation date back to European practices in the Middle Ages. Some of North America’s first land-regulation provisions were based upon the Coutume de Paris, “a set of civil laws drafted for the city and region of Paris in medieval times, codified in 1510 and written into the civil code of New France in 1664.” Even in colonial America, colonists enacted land-use regulations dealing with building heights, roof types, and prohibitions on new buildings unless existing structures were in use. The first major American city to enforce a zoning code was the city of Los Angeles, which adopted their code in 1908. In 1916, New York City leaders replicated the types of measures already passed in Los Angeles, and Canadian cities such as Montréal and Toronto, when they passed their zoning ordinances. These leaders purported to be using state police powers to protect the health, safety, and welfare of the community but also were seeking financial benefits. “As Edward Bassett, the legal mastermind behind the [New York City] zoning ordinance of 1916, explained in 1913 . . . [universal standards] would interfere so seriously with existing property values [in expensive locations] as to render them of doubtful expediency and constitutionality.”

Historically, land-use regulation has been controlled by municipalities. The zoning process often excluded citizens (besides property owners) from participating. This exclusion led to what some authors note is a “process [that] reflects the imbalance of power between pro-development forces and the grassroots.” Each state passes their own zoning-enabling legislation, which grants the municipalities the power to create these specialized boards, while also detailing what type of judicial appeal process would govern.

The vast majority of states passed statutes based upon the Standard State Zoning Enabling Act (SZEA). SZEA was a product of the advisory Committee on City Planning and Zoning by then Secretary of Commerce Herbert Hoover. Most states’ zoning statutes have remnants from SZEA. The Supreme Court, very soon after the SZEA was enacted, affirmed states’ zoning powers in Village of Euclid, Ohio v. Amber Realty Co. Following SZEA, many states adopted a judicial appeal process that allowed courts to take additional testimony if necessary. However, not all states followed this approach. During the early twentieth century, some states passed statutes that called for courts to not only hear testimony “if necessary,” but, more generally, to create a trial de novo before the court. This approach, taken by a minority of states, allows or requires the judge to conduct fact-finding as if the matter did not already occur before the municipal board. Some states statutorily require de novo review of these matters, which has yielded a plethora of court fodder regarding the separation of powers and de novo review of these administrative/quasi-judicial matters.

Nationwide, the general rule is that the court should not conduct a trial de novo when reviewing the decision of a municipal zoning authority. In many states, courts are limited to determining whether the municipal body acted arbitrarily, illegally, or unreasonably in abuse of its discretion based upon the facts presented to the board. Conversely, in a minority of states referenced above, including Massachusetts and Vermont, courts will hear the matter de novo and make a determination on the merits of the municipal authority’s decision based on facts found by the court. Some of these states have caselaw that dictates that the record of the municipal board “has no evidentiary weight.” To evaluate the different standards applied across the country, one can look to the New England states as both approaches are exemplified in the region.

II. The New England States’ Approaches

A. Massachusetts—the De Novo Standard

Municipal zoning has a long tradition in Massachusetts. As of January 1, 1932, the Commonwealth had 121 municipal planning boards. Before the 1933 enactment of An Act Revising Municipal Zoning Laws, an appeal of a zoning matter was brought directly to the Massachusetts Supreme Judicial Court (SJC). Upon the rise of municipal zoning, the legislature of the Commonwealth of Massachusetts passed Chapter 31 of the Resolves of 1931 and 1932, which established a special commission to study and revise Commonwealth law regarding zoning, town planning, and billboards. The product of this report was Senate Bill 433 (1933), introduced by the chair of this special investigative committee, State Senator Arthur W. Hollis, of Newton. Senate Bill 433 was enacted as sections 25–30A of the Massachusetts General Laws.

This revision codified the new processes and court jurisdictions regarding appeals of municipal zoning decisions. The statute contains the following language:

The court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.

This language, unmodified since its 1933 passage, today governs appeals of Massachusetts municipal zoning decisions in section 17 of chapter 40A.

Massachusetts courts have interpreted the state statutory language to specifically require the judge hearing the appeal to be the factfinder and establish the facts to which he will apply the arbitrary and capricious standard. In Pendergast v. Board of Appeals of Barnstable, the Massachusetts SJC first interpreted the language now found in section 17 of chapter 40A of Massachusetts General Laws and its predecessor section 30 of chapter 40. The Board of Appeals in Barnstable denied a variance for a beach house near Craigville Beach. The municipal board’s decision was appealed to the superior court, where the judge conducted a trial de novo and ordered the board to grant the variance. This decision was appealed to the SJC for consideration as to whether a variance being granted is an administrative question and whether the court has the authority to order the grant of the variance.

The SJC ruled that the matter must be considered de novo. The judge hearing the appeal has no administrative discretion when considering the matter. This decision made it clear that the judge hearing the appeal is not restricted to considering only the facts provided to the municipal board who first considered the matter.

Shortly after the Pendergast decision, the SJC added that “[t]he decision of the board is no more than the report of an administrative body and on appeal has no evidentiary weight. . . . The decision of the board cannot be treated as the report of an auditor, a master, a commissioner, an assessor, or some other judicial officer made in the usual course of judicial proceedings.” In Devine v. Zoning Board of Appeals of Lynn, the SJC found that the superior court judge acted improperly when he affirmed the decision of the municipal board, taking many of the findings of the board as facts to support his decision.

The court reiterated the Massachusetts standard in Josephs v. Board of Appeals of Brookline, where the SJC interpreted the Commonwealth’s statutory and case law to “require” this de novo fact-finding by the court when determining the validity of the decision of the municipal board. The court ruled that “[o]n appeal from the board’s decision, it is the judge’s duty to determine the facts for himself, to apply the governing principles of law, and then to inspect the decision of the board and enter such decree as justice and equity may require.” The judge hearing the appeal is not allowed to “give the board’s findings or decision evidentiary weight.” Additionally, the judge is not allowed to “make findings which, in substance, constitute a ‘mere repetition of the statutory words.’”

In addition to the judicial interpretation of the language contained in section 17 of chapter 40A of the General Laws of Massachusetts, it is interesting to consider the legislative history of the statutory language. Because the statutory language is derived from the old section 30 of chapter 40 § 30, we can evaluate the legislator’s intent of that bill passed in 1933. The special commission to study and revise Commonwealth law regarding zoning, town planning, and billboards mentioned supra, released a final report expressing their findings and intentions, which developed into Senate Bill 433.

Their final report outlines concern regarding an approach where the only facts relied upon in court are those reported by the municipal board. They note that these municipal boards are made up of “laymen” and that “[r]ecords of such boards are not made up with the care that is used in making up records of courts, and are frequently incomplete.” Additionally, they were concerned as to the implications of the standard practice of the SJC at that time, which was to infer facts from the records submitted and not hear evidence. This concern led to a recommendation that “such appeals be taken to the Superior Court sitting in equity, which shall be charged with the duty of determining the facts in the case and rendering decree in accordance with the facts so determined.” Moreover, this concern about the quality of records that lay municipal boards create was the explanation for the decision to require de novo fact-finding in Massachusetts.

B. Connecticut—The National Trend (deferential review)

Connecticut legislatively authorized municipal zoning prior to the Massachusetts statute. The first Connecticut municipal zoning laws were passed in 1923. The Connecticut legislature initially authorized the creation of municipal zoning boards on a town-by-town basis. These statutes authorized a right to appeal but did not provide any guidance on what an appeal should look like. In 1925, the legislature authorized the creation of municipal zoning authorities on a statewide basis. This statute also authorized appeals of board decisions to courts.

Even well after the passing of the language that currently controls zoning appeals in 1949, there was confusion as to whether the right to appeal to the courts was provided to all towns (specifically those towns that were statutorily given the power to create municipal zoning authorities on a case-by-case basis). This issue was resolved in 1956 by the Supreme Court of Common Errors of Connecticut, which ruled that the legislative intent was clear in trying to create a right to appeal to the courts in all municipalities. Connecticut courts have ruled that section 8 of title 8 of the Connecticut General Statutes (the current citation for the state zoning enabling law) requires that the court not handle an appeal in de novo fashion. Likely due to the clarity in the statutory language in section 8 of title 8, the handling of appeals in a non-de novo fashion has not been heavily litigated. However, Connecticut courts have articulated the courts’ role in handling these appeals in a string of cases.

The first case under the modern statute to articulate the prohibition of a trial de novo in these matters was Talmadge v. Board of Zoning Appeals of New Haven. A property owner sought a variance to allow the first floor of a three-story home to be used as a boarding house for “old age women.” The Board denied the request, and its decision was appealed to the Court of Common Pleas, which dismissed the action. The Supreme Court of Errors ruled that “[t]he appeal to the court from the decision of the board did not require or permit the court, by trial de novo, to substitute its finding and conclusions for the decision of the board.” The court held that the Court of Common Pleas did not err in dismissing the appeal.

Similarly, in Suffield Heights Corp., a decision of the Town of Manchester Planning Commission was appealed. An owner of real property sought to change the zoning of one of his properties from residential to business. The Supreme Court of Errors stated that “[c]ourts cannot substitute their discretion for the liberal discretion which the legislature has conferred on local zoning authorities,” and more importantly outlined two reasons for this rule:

First, courts do not have administrative or legislative powers and consequently do not hear appeals from zoning authorities de novo. Second, local authorities are presumed to be more familiar with the circumstances of a given situation and the peculiar character and inherent nature of the zonal development of their town.

When considering appeals of municipal land-use bodies, Connecticut courts have stated that they rely on the “substantial evidence” rule when determining whether the evidence in the board’s records is sufficient to sustain their action. One court connected the “substantial evidence” rule to the debate between de novo and differential review:

The “substantial evidence” rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration.

This statutory language creates a heavy reliance on the records provided by the land-use agency. The boards are required to record or have a stenographer at decision-making sessions, maintain meeting minutes, and, “while they do not usually contain detailed information of what occurred, . . . at least provide a summary which can assist in preparing an appeal.” When an appeal is filed, the board is required to provide these records to the court hearing the matter. “With minor exceptions, the appeal is based upon the record before the agency, and the record affects the issues that may succeed on appeal.” Minor exceptions are provided by section 8(k) of title 8, which states that the court “shall allow any party to introduce evidence in addition to . . . the record if (1) the record does not contain a complete transcript of the entire proceedings before the board . . . , or (2) it appears . . . that additional testimony is necessary for the equitable disposition of the appeal.” Generally, when this additional testimony is allowed in this type of trial, the testimony does not transform the trial into a trial de novo. The additional testimony is used only to “clarify or supplement” the record before the board.

It is important to note that Connecticut’s first zoning statute was modelled after the Standard SZEA. This is partially responsible for why Connecticut’s standard of review for land-use appeals follows that of the majority of states. In summary, Connecticut, like most of the country, requires that courts not treat appeals from municipal land-use and zoning authorities as a trial de novo. Connecticut’s statutory language requires that municipal boards keep detailed records of their hearings and that those records be sent to the court hearing an appeal of that board’s decision. Courts have interpreted the statutory language as requiring the court to be deferential to the board and to only consider additional testimony when it is needed to “clarify or supplement” the record of what was presented to the board.

C. Vermont—Statutorily Required Trial De Novo

Vermont passed its first municipal land-use statute in 1931. This statute contained substantially different language than the current statute. Courts interpreted this language to allow for de novo trial of appeals. However, one court noted that consideration of the appeal should be limited to the “grounds specifically predicated with the appeal rather than . . . giv[ing] the county court the overall de novo jurisdiction.”

The issue of de novo consideration of appeals of municipal land-use decisions was not heavily litigated prior to the passing of Vermont’s revised zoning enabling statute in 1967 and the statute’s subsequent amendment in 1973. The 1967 language is as follows:

An interested person may appeal a decision of a board of adjustment to the county court of the county in which is located the property at issue in such decision . . . . The exclusive remedy of an interested person with respect to any decision or act taken, or any failure to act, under this chapter or with respect to any one or more of the provisions of any plan or by-law shall be the appeal to the board of adjustment under section 4464 of this title, and the appeal to a county court from an adverse decision upon such appeal under section 4471 of this title.

The 1973 amendment added to the language of the 1967 statute above that “[t]he appeal to the county court shall be governed by the Vermont rules of civil procedure and such interested person shall be entitled to a de novo trial in the county court.”

The first case to address the right to de novo trial specified in section 4472(a) of title 24 of the Vermont Statutes Annotated was In re Poole. This case involved an appeal of the St. Johnsbury Planning Commission’s grant of site plan approval for a McDonald’s Restaurant. The trial court held an “extensive evidentiary hearing” and concluded that the planning commission acted in accordance with the municipality’s zoning ordinance. Appellants appealed the trial court’s decision to the Supreme Court of Vermont, claiming that “the trial court erred in failing to conduct a trial de novo as mandated by Vt. Stat. Ann. tit. 24 § 4472(a).” The appellants argued that the statutory entitlement of a trial de novo should have prevented the trial court from allowing the planning commission and zoning board’s findings and conclusions into evidence and that substantial similarity between the trial court and the municipal board’s findings demonstrated a mere review of municipal findings in violation of the right to a trial de novo.

The court dismissed these arguments. The court expounded that “[a] de novo hearing is one where the case is heard as though no action whatever had been held prior thereto. All of the evidence is heard anew, and the probative effect determined by the appellate tribunal (superior court here) as though no decision had been previously rendered.” The court concluded that the allowance of municipal findings was not an “irreversible error” due to the facts present in evidence beyond the municipal records. The court also went on to say that the trial judge should have put his conclusions in his own words, which would have prevented the argument that he did not manufacture his own findings. The issue was remanded for a new order. The court concluded, “It is the duty of the court in a de novo hearing to specify in its order all the terms and conditions thereof. It is error to merely make an order affirming or reversing the decision of the administrative body below.”

The legislative grant of a right to de novo trial was constitutionally challenged in 1989. In Chioffi v. Winooski Zoning Board, a property owner appealed a municipal board’s denial of a “dimensional variance and conditional use approval.” During the appeal, the municipal board sought a declaratory judgment, arguing that the right to a de novo trial in section 4472 violated the Vermont Constitution’s provision regarding the separation of powers between government branches.

The Supreme Court of Vermont, agreeing with the trial court, concluded that this provision did not violate the state Constitution. The court stated:

[W]hile the record of the Board hearing may be admitted as evidence, the superior court is not restricted to that record, nor is the court required to give deference to the Board’s decision. The Board contends that this treatment of a Board decision unconstitutionally provides for the judiciary to exercise a legislative or executive function. We conclude that, in rendering its decision, the Board was performing a quasi-judicial function.

The court cited and quoted from cases from across the nation in support of the conclusion that in Vermont, a trial de novo is permissible when an “agency” operates in a quasi-judicial capacity. The court concluded by warning trial courts to “resist the impulse to view itself as a super planning commission” and “not . . . set policy for the municipalities.” Since Chioffi, Vermont courts have continued to articulate a broad view of the role of the judiciary in municipal zoning appeals given the statutory right to trial de novo.

D. Rhode Island—Statutory Interpreted Deferential Review

Prior to 1969, zoning appeals in Rhode Island were handled through certiorari by the state supreme court. The statute governing petitions for review by certiorari specified that the state supreme court could only consider evidence of what was presented to the municipal board.

This statute was amended in 1969 when a bill was enacted reorganizing the judicial system of the state of Rhode Island. The amendment replaced the certiorari process and added:

Any person or persons jointly or severally aggrieved by a decision of the zoning board may appeal to the superior court for the county in which the municipality is situated by filing a complaint setting forth the reasons of appeal. . . . The review shall be conducted by the superior court without a jury. The court shall consider the record of the hearing before the zoning board and if it shall appear to the court that additional evidence is necessary for the proper disposition of the matter, it may allow any party to such appeal to present such evidence in open court, which evidence along with said record shall constitute the record upon which the determination of the court shall be made. The court shall not substitute its judgment for that of the zoning board as to the weight of the evidence on questions of fact.

The courts in Rhode Island grappled with the issue of determining what standard of review the court should apply in E. Grossman & Sons, Inc. v. Rocha. The appeal involved whether the review applied by the superior court complied with the statutory language. The court noted how the language of the legislation was “somewhat imprecise.” The court commented:

There is verbiage which in one part would seem to suggest that reversals shall be limited to instances where the agency, by acting in an arbitrary manner, has exceeded its jurisdiction, and at another point there is language which carries the implication that judicial review means a de novo hearing in the Superior Court. Adoption of the de novo view could lead us to a constitutional confrontation with the Legislature on the issue of whether the judicial branch of government may be required to implement legislative policy in a nonjudicial matter.

The court articulated its belief that the General Assembly would have used specific language if they wished to authorize de novo appeal. They stated that “[i]f the General Assembly had intended that the Superior Court become a ‘super duper’ planning board for all of the thirty-nine municipalities of this state, it could have said so in plain, simple, and direct English.” The court stated that the superior court should be applying “traditional judicial review” to administrative agency actions and concluded that fact-finding by the superior court should be “restricted to a search of the record made before the board of review.”

No other major Rhode Island cases have commented beyond the interpretation stated in E. Grossman & Sons. It is interesting that, when evaluating this standard of review, the Rhode Island appellate court came to the opposite conclusion of the Vermont Supreme Court in Chioffi. In Vermont, requiring trial de novo of the decisions of the municipal boards (considered quasi-judicial bodies) was affirmed. In Rhode Island, the opposite conclusion was reached, and courts are prohibited from conducting de novo review of municipal land-use decisions.

E. New Hampshire—Deferential Review with Liberal Allowance of Evidence

New Hampshire passed their zoning enabling statute in 1925. In 1942, the Supreme Court of New Hampshire interpreted this language in as “analogous in its effect to the award of a new trial, by which the previous verdict is entirely set aside, and the case is to be heard anew like an original action, and as if no judgment had been entered in the court below.” This interpretation is similar to the interpretations of the Massachusetts statute, entitling the petitioner to a trial de novo at the superior court.

However, the state legislature amended the appeal process in 1949. The amended portion reads as follows:

Upon the hearing the burden of proof shall be upon the party seeking to set aside any order or decision of the board of adjustment or legislative body to show that the same is unreasonable or unlawful, and all findings of the board of adjustment or legislative body of such municipality upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated, except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it, that said order or decision is unjust or unreasonable.

Courts interpreted this language to not provide for a trial de novo for appeals of municipal zoning boards. In Gelinas v. City of Portsmouth, the court commented on the change in the statutory language, stating that “[t]here is now no trial de novo by the court on such appeals.” This conclusion was challenged however, given how another state statute provides that “[a]ll evidence transferred by the board of adjustment . . . shall be, and all additional evidence received may be, considered by the court regardless of any technical rule which might have rendered the same inadmissible if originally offered in the trial of an action at law.” In this challenge, the court determined that the trial judge is “entitled” to consider additional evidence presented to the court, “even though it was not before the board.”

In Sweeney v. City of Dover, the Supreme Court of New Hampshire elaborated on this standard of liberal allowance of evidence, but did not elucidate an entitlement to a trial de novo. The court stated, “The purpose of the statutory provisions for the receipt of such additional evidence is not to afford the appealing party a trial de novo, but rather to assist the court in evaluating the action of the [board] where the record was incomplete . . . even though . . . the evidence itself was not presented at the hearing before the [board].” For example, in one case, testimony was taken from multiple municipal officials, an abutter, and a traffic engineer, and the court ruled that this evidence could be used, in addition to the record, in evaluating the action of the municipal board. This standard of not entitling petitioners to a trial de novo, while liberally allowing evidence to be considered by the trial judge, has been held since Sweeney. This standard, while similar to that of Connecticut and Rhode Island, is unique.

F. Maine—Appeals Governed by the Maine Rules of Civil Procedure

The state of Maine’s statutory scheme is quite different from the other New England states. Maine’s statutes contain multiple sections regarding appeals of municipal land-use decisions; however, none of these sections outlines how the court should handle these appeals. Instead, review of appeals of municipal zoning and land-use authorities are governed by Rule 80(b) of the Maine Rules of Civil Procedure.

Rule 80(b) of the Maine Rules of Civil Procedure governs the procedure of appeals of any municipal governmental action. This rule differentiates Maine from the rest of the New England states because the other states have statutes or case law containing specific provisions outlining the standard of review that courts should apply to appeals of municipal land use and zoning. It would create a false equivalence to compare provisions and decisions relating specifically to municipal land-use appeals with rules of civil procedure outlining general mechanisms that apply beyond municipal land-use appeals. For this reason, further discussion of Maine law has been excluded.

III. The Argument for Trial De Novo

Many of the states that allow for a trial de novo in municipal zoning appeals have held such a standard since the initial adoption of their state’s zoning enabling act. The original decision in at least one of these states (Massachusetts) to allow for or require a trial de novo is based upon early twentieth century concerns about the record-producing abilities of municipal boards.

Municipal land-use boards are unique when compared to other administrative panels and agencies. This distinction is noted in Judicial Control over Zoning Boards of Appeal: Suggestions for Reform.This unique quality of the municipal land-use board—the unprofessional nature of their hearings and appointments—was cited as the reason for allowing, or requiring, de novo appeals. In Massachusetts, the special commission studying zoning and town planning specifically did not follow the recommendations of the experts in the field in early 1930s. This special commission, led by Sen. Arthur Hollis (who later introduced the Massachusetts zoning enabling act), stated that the municipal boards are made up of “layman” and that “[r]ecords of such boards are not made up with the care that is used in making up records of courts, and are frequently incomplete.” This overview was in contrast to the more deferential approach recommended by Edward Bassett (the founder the parkway and zoning expert referenced supra) and other professionals from the Harvard School of City Planning.

One must consider the circumstances under which municipal boards were working at the time many state zoning enabling statutes were drafted. At this time, computers and word-processing software were not commercially available. Records of proceedings were written on paper in large books. This was well before the wide availability of affordable recording technology that could be used to record a municipal proceeding. The circumstances under which early boards operated was vastly different from the methods used today.

Some may argue that the current de novo review process in Massachusetts and Vermont works well, so there is no need to make any changes. This view is misguided. The current situation is synonymous with using a land line when there are cellular devices with more modern and advanced features available to the user. While the land line serves the basic functions required and allows the user to make calls, it is inefficient compared to alternative devices. Trial de novo is like a land line: it works as the current appeals process in some states, but it is inefficient. Relying on the record and the facts presented to the municipal board is more efficient, as it prevents courts from replicating the fact-finding that the municipal board conducted. Like land lines, while de novo review of municipal land-use decisions was revolutionary and reasonable when first instituted, it is now inefficient, and states should upgrade to a more modern process.

The argument supporting de novo review, as expressed by the Massachusetts special commission, is no longer applicable. While these boards are still made of “laymen,” the technology that exists today relieves any concerns about the record produced by the municipal board. Boards can record meetings and easily copy and produce plans and other documents presented. The laymen’s inability to produce a detailed record is no longer a viable argument.

IV. The Argument Against Trial De Novo

Trial de novo in municipal zoning appeals presents separations of powers concerns, along with unease with the theoretical and practical implications of such a standard. Allowing or requiring courts to give “no evidentiary weight” to the record of the municipal board is inefficient and turns the municipal hearing into a mere rehearsal for a trial in court.

A. Separation of Powers Concerns

Trial de novo land-use appeals also create a conflict between local authority and expertise and judicial involvement. One city planning expert noted:

As a general proposition, state and local judicial systems in the United States are not well equipped to manage appeals of legislative and quasi-judicial land-use decisions of local governments. Land-use decisions include comprehensive land-use plan text and map amendments, zoning code text and map amendments, conditional use permits, special use permits, variances, subdivision plats and other forms of land partitioning, highway access permits, and land disturbance.

State legislatures provide municipal boards with the authority to make land-use decisions, as the boards are the persons who know the area and are best positioned to handle these issues. A trial de novo devalues the municipal board and forces the court to repeat fact-finding that has already taken place by the municipal officials.

This concern over judicial fact-finding in land-use appeals is not something new. In 1967, one author noted that “[a] trial de novo is not only a delegation of legislative authority to the courts; it is also a waste of both expertise in the field of zoning and time of the courts in adjudicating something more properly determined by the board.” More recently, another author commented that allowing the judge to consider new evidence is contrary to the general notions of deference: “[t]he admission of evidence that could have been presented to the local government previously is particularly difficult for me, especially when presented to a judge who has little or no statutory discretion regarding how to decide the case.”

State supreme courts have differed in their determinations as to whether allowing, or requiring, courts to hear appeals de novo violates state constitutional measures regarding the separation of powers. As discussed previously, even state supreme courts in New England have differed on this point. In Vermont, the court held that requiring de novo review did not violate the states separation of powers provision. In Rhode Island, the court found that it did violate the separations of powers provision. The issue that makes de novo review of municipal boards unique is the fact these boards fill administrative, legislative, and judicial functions.

Municipal land-use boards receive their authority from state legislatures. They partake in land-use planning and zoning. They hear petitions for variances and special permits and issue decisions. Some courts examine these boards and determine that they should be treated like administrative agencies; other courts determine that these boards serve quasi-judicial functions.

In American Beauty, the Kentucky Court of Appeals determined that requiring a trial de novo in land-use appeals imposes a nonjudicial administrative function on the court. This view has been reiterated by other state supreme courts across the country. While a majority view suggests that these provisions do violate traditional separations of powers in government, reasonable minds can disagree about this determination. While courts in Kentucky, Georgia, Rhode Island, and Vermont disagree on this matter, states can avoid violating separation of powers provisions and requiring the judicial branch to perform nonjudicial functions by not allowing courts to hear municipal land-use appeals anew.

Additionally, it has been stated that uniformity of state laws is desirable. State legislatures should work to ensure that, across states, different interpretations and standards of review are avoided, creating rules on which both practitioners and novices can rely. To work toward uniformity of laws, an original SZEA goal, states should pass legislation to preclude de novo review in municipal land-use appeals.

B. Required Rehearsal—De Novo Review Turns Municipal Hearings into a Rehearsal.

The trial de novo standard weakens the finality of a municipal board decision. It creates a situation in which what appears before the municipal board is not what governs future proceedings. Sara Bronin and Dwight Merriam articulated this point in Rathkopf’s The Law of Zoning and Planning (4th ed.):

If either an applicant for relief or his opponents could retry the issues, proceedings before a board of appeals or zoning adjustment would be reduced to just one other intermediate step in a series of referrals to advisory bodies and hearings resulting in nonfinal determinations. It would remove from these boards the authoritative positions they were intended to have and make the proceedings before them a rehearsal for the trial de novo which would be available to the unsuccessful party before the board.

Allowing the municipal hearing to turn into a rehearsal creates a situation in which parties turn to strategy and gamesmanship, which depreciates the importance of the municipal board. One author articulated the strategies that a party might employ, knowing that the decision of the municipal board is granted a trial de novo when appealed.

So, when the applicant presents its case to the local panel, oftentimes the goal is simply to get through the process as quickly and as cheaply as possible so that the “real” proceeding can begin at the environmental court level. Conversely, project opponents can try to use the local proceedings to their advantage in at least two ways. They can seek to prolong the proceeding at the local level, hoping to increase the applicant’s costs, thereby either torpedoing the project or at least gaining leverage in settlement negotiations. Or, opponents can attempt to “sandbag” a project—that is, they can wait in the wings during the local proceedings, allowing the applicant to present a complete case (believing that the project does not face stern opposition and that a favorable decision will not be appealed), and then appeal the panel’s decision to court, forcing the applicant to start all over in a de novo hearing.

This gamesmanship should be avoided. The process of appearing before the municipal board should be the key decision-making process, not just a step before the matter can be presented to a judge.

The fact that de novo review deteriorates the finality of the municipal board’s decision should be enough to warrant a change in procedure. The finality of the municipal board’s decision is extremely important. Many matters that come before these boards involve business and new housing developments with major financial investments at play. In these matters, both the petitioner and other interested parties must be able to rely on the judgment and decision of the municipal board so that the process can move forward. Allowing for de novo review creates uncertainty, which can lead to an inefficient process.

De novo review can turn the municipal hearing into a meaningless endeavor. By allowing the trial court to turn the municipal process into something that needs to be accomplished, rather than the tribunal that makes a final determination, the authority of the municipal board is diminished. One author commented that de novo review, in another context, can cause an administrative decision maker to not perform with a high level of care. In a way, de novo review could be considered a mechanism to stop municipal boards from acting with the level of care required. Because the municipal board knows that its decisions will receive de novo review, the board can punt its duties to the judiciary when it wants to avoid its duties. For example, a board might want to issue a special permit without extensive fact-finding and discussion to avoid comparison to another recent decision, which the board considers to stand on a limited basis. De novo review can prevent the municipal board from acting with the level of seriousness and finality that the process demands. By not allowing the court hearing the appeal to consider the matter de novo, members of municipal boards would be forced to handle each matter with a high level of seriousness and care since the court cannot repeat the board’s work in a de novo trial. Boards would know that, if appealed, the court would be limited to making considerations based upon the fact-finding that occurred at the municipal level.

C. More Money, Fewer Problems—Economic Social Justice

Because the de novo standard allows any municipal land-use decision to be heard anew at a trial court, parties who have more financial resources and more experience before municipal boards have a structural advantage. One treatise notes that “[t]he expense of new proceedings would be burdensome to all parties and the additional time involved would be particularly expensive and onerous to an applicant for a variance or other relief which is needed for a proposed development.” This economic injustice allows parties with greater resources to absorb these costs while other parties will feel the burdens of lengthy litigation more.

The idea that parties with greater resources have an advantage in litigation is not new. In 1974, Professor Marc Galanter authored Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, which highlighted the structural advantages that parties with more resources and experience have. These reflections are directly applicable when considering de novo review of municipal land-use appeals. Galanter noted that wealthy parties are advantaged by cost and delay barriers in institutional facilities. Land-use appeals are placed before courts that do not have the resources to handle de novo review of these matters in a timely fashion. This practice creates a structural advantage for parties with more financial resources and time. Additionally, Galanter notes that repeat players “having done it before, have advance intelligence; they are able to structure the next transaction and build a record.” This observation also directly relates to de novo review of land-use decisions. Parties who are familiar with the de novo review process in appeals can use the municipal hearing strategically to further support their position going into an appeal.

Repeat players are also structurally advantaged when they present to the municipal board because of the de novo standard. Repeat players develop relationships with the board. The board may have a certain level of trust in a developer, engineer, or attorney that appears before them frequently. The board may approve a measure based upon the statements of the trusted presenter without further investigating the matter. If the board approves a petition and the matter is appealed, the appealing party may pursue expensive litigation when the petitioner retains unpresented factual circumstances that support the decision of the board. These facts might not have been presented to the board but, in a de novo review, can be offered as evidence to support the decision of the board. This is problematic and creates a greater advantage for wealthy and institutional parties (those whom Galanter refers to as the “Haves”).

IV. Recommendations to Remove De Novo Review

To prevent courts from reviewing municipal land-use appeals de novo, state legislatures in states that require de novo review should pass legislation reforming the state zoning enabling laws to require courts to rely on the record of the municipal hearing when considering an appeal. In states like Massachusetts and Vermont, legislatures should pass laws to restrict judges from hearing the matter de novo and limit consideration of the matter to the facts originally presented before the municipal board. For example, in Massachusetts, a bill that aims to streamline the process of municipal land-use appeals has been introduced. The bill would amend section 17 of chapter 40A of the Massachusetts General Laws to contain the following language:

The court may not accept or consider any evidence outside the record of the board of appeals or special permit granting authority unless that evidence was offered to the board of appeals or special permit granting authority, respectively, and the court determines that it was improperly excluded from the record.The court shall examine the record upon which the decision of the board of appeals or special permit granting authority is based, and upon such record determine only whether or not the decision is arbitrary, capricious, or illegal. A decision of a board of appeals or special permit granting authority is valid if the decision is supported by substantial evidence in the record and is not arbitrary, capricious, or illegal.

This language would prevent judges handling municipal land-use appeals from conducting de novo review of municipal land-use decisions. It would require courts to rely on the record created by the municipal board, with certain exceptions. This process would eliminate many of the concerning problems de novo review creates in these situations. The legislation should incentivize parties to ensure that the municipal board is making a decision based upon a full and detailed record. This legislation would limit the advantages that parties with greater resources and repeat players have under a de novo scheme. If all parties must make an effort before the municipal board and the appeal is based only upon the record developed by the board, the advantages de novo review creates for more affluent parties are eliminated.

For those who may be concerned that this sort of legislation would place courts in a difficult position of relying heavily on the records that these municipal boards create, particular measures can be taken, in conjunction with this legislation, that would ensure the viability of the record. In addition to these measures, one should be comforted that municipal boards have already proved their ability to adapt to technological changes and use software to record their meetings.

States should pass legislation requiring the recording of proceedings before municipal land-use boards. Some states already have passed such legislation. This sort of legislation could be one assurance that the record developed by the municipal board can be relied upon by the judicial body considering an appeal. This legislation is practical, as it ensures that any evidence heard by the municipal board is preserved for a possible appeal.

If municipalities feel that their current technological capabilities are insufficient, private companies can assist. For example, the Illinois, Massachusetts (including Boston Municipal Courts), and New York judiciaries use recording platforms to create digital recordings of all matters heard in court. These platforms provide recording technology and software that both maintains recordings and creates transcriptions. If legislators should find themselves concerned with the municipal boards’ ability to record hearings, then the states can provide funding for or require the use of software solutions.

Additionally, municipal boards have recently proved their adaptability to technological changes and their ability to use software solutions that have the capability to record hearings. When the COVID-19 pandemic began, municipalities (which have traditionally relied upon in-person meetings at municipal properties) had to quickly adapt to a remote format. Many towns jumped to web-based audio/video conference platforms for their virtual meetings. This experience has proved that these municipal boards can easily incorporate new technology into their meetings. These software solutions have the capability to record meetings. Asking municipal boards to ensure a viable record is a small ask in the post-COVID age.

For those concerned about the lack of ability to introduce evidence on appeal when the standard is not de novo, another measure that could ensure the justiciability of the municipal decision would be to adopt the standard applied in New Hampshire today. To do this, legislators could draft legislation to not provide for de novo review of these municipal land-use decisions but to permit a liberal allowance of evidence on appeal. This half-measure could alleviate the problems de novo review causes but also ensure the ability of parties to introduce evidence that completes an incomplete record created by the municipal board.

One other measure lawmakers can take is to pass legislation requiring certain education programs for members of municipal land-use boards. Educating members of municipal land-use boards can eliminate concerns about the record keeping ability of “layperson” municipal boards. Required training could highlight the importance of what occurs before the municipal board, educating about how the record should be constructed and recorded and how the record is used in judicial appeals.

The idea of education programs for municipal land-use board members is not new. Connecticut already has codified requirements for training for municipal board members. Passing legislation similar to the bill currently introduced in the Massachusetts legislature would ensure that members of municipal boards would receive certain trainings. This legislation would “establish, conduct and maintain an annual program of education, self-evaluation, and training for members of local planning boards and zoning boards of appeals, at no cost to municipalities.” This legislation could be improved by specifying required training topics as the Connecticut statute does. Legislation could require topics such as ensuring a complete record and preparing for a judicial appeal, ensuring that these municipal board members are educated on both processes, the standard applied when their decision is appealed, and the importance of constructing a detailed record. In addition to passing legislation that prevents de novo review of municipal land-use decisions, states should pass legislation requiring board members to complete trainings to relieve concerns over municipal records and to make certain that board members are aware of the process and legal standards that govern appeals of their decisions.


To live up to the ideals expounded by de Tocquevillenoted above, state legislatures in states that allow for, or require, de novo review of municipal land-use appeals must pass legislation to require judges to limit review to the record of the municipal board, with few exceptions. De novo review of municipal land-use appeals is highly problematic. State supreme courts have come to different conclusions concerning the prudence of requiring de novo review of these appeals when considering state separation of powers provisions. De novo review can turn the municipal hearing into a rehearsal of sorts. It can create a situation where interested parties may take advantage of the standard of review and turn to gamesmanship to obtain a strategic advantage. The standard of review also creates an advantage for parties with more experience before the municipal board and in land-use litigation and who have more financial resources to fund an appeal.

In addition to statutorily requiring courts to not hold a trial de novo when considering an appeal of a municipal land-use decision, state legislatures can pass additional measures to ensure the quality of the record produced by the municipal board. State legislation can require municipal boards to record municipal hearings, to fund technological solutions for municipalities, and to require educational programs for land-use municipal board members about the municipal record and what occurs upon appeal. Municipal boards have proved that they are competent using recording technology, and these measures would support the goal of uniformity of state laws and prevent the gamesmanship that should be avoided. Passing these measures can ensure that standards of review used in the consideration of municipal land-use appeals lives up to the ideals de Tocqueville recognized, and these measures can also ensure that municipal institutions, which guarantee a “spirit of liberty,” are treated with the deference that they deserve.

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    Andrew Loin

    Western New England University School of Law

    Andrew Loin, JD candidate, Western New England University School of Law (graduation anticipated May 2024). Andrew serves as Editor-in-Chief of Volume 46 of the Western New England Law Review. He would like to thank Professor Julie Steiner for her thoughtful advice and comments on this article as it was being written and the editors of The Urban Lawyer for their detailed edits and dedicated efforts, which brought this article to life.