The case goes back more than six years when the town of Bellingham decided to amend its zoning to enable a power plant to be built. The power plant's developer made an $8 million gift to the town that was to be used for any municipal purpose. But when abutters to the project appealed the power plant four years later the fact that the developer's "gift" was not tied to project mitigation convinced the Land Court judge to strike down the rezoning.
"The Land Court ruled that the mere fact that the offer had been made to the town tainted the town's decision to rezone," Bob Fishman, a partner in the Boston law firm of Nutter McClennan & Fish, tells GlobeSt.com.
What struck terror in the hearts of developers with this case was the fact that the Land Court judge could invalidate a rezoning amendment so many years later. The National Association of Office and Industrial Properties submitted an amicus brief to the Supreme Judicial Court and after the court's reversal notes that the decision "turns back a significant legal threat to development projects and represents a victory for municipalities and developers."
As Fishman points out, developers usually make an effort to provide some mitigation to a municipality when a large project is involved. In fact, in Boston the process is formalized with developers of large projects in the city required to provide linkage fees to mitigate their project's effects.
But in this case the $8 million was not related to the project's impact. Still the court ruled that a voluntary gift could not invalidate what was otherwise a valid rezoning. "How do you prove that the gift was the motivation for the vote?" notes Fishman. "The courts do not second guess what a legislative body does."
According to Fishman, this ruling provides developers and property owners with predictability and certainty--crucial elements in developing real estate. "This is a victory for anyone who deals with significant investments in land," he says. "They've been given the certainty that when they receive a rezoning it will be upheld."
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