This communication summarizes the findings of a recent Land Court decision regarding the Symes subdivision project off Main Street in West Concord. In 2020, the Planning Board approved Symes’ subdivision plan for 18 single-family homes, subject to certain conditions. Symes appealed, and the Land Court overturned some of these conditions, including a bylaw provision, stating they exceeded the Planning Board's authority. The Town did not appeal this decision.

Subsequently, Symes applied for an earth removal permit, which the Zoning Board of Appeals (ZBA) denied, citing concerns over increased train noise and tree removal. Symes appealed this denial as well. 

 In January 2025, the Land Court reversed the ZBA’s decision, finding that the ZBA improperly applied the special permit test, because, according to the court, the earth removal permit could not be used as a means to obstruct the development of “as-of-right” uses, like single-family homes. The court determined that the impact of noise would be minimal, and chose not to address the removal of trees, as it was considered in the context of the improperly applied special permit test. The Land Court remanded the matter to the ZBA, requiring it to issue a permit with reasonable conditions regarding work hours and days. 

 Town's Decision Not to Appeal:

After careful consideration by the Town Manager, and in consultation with the Select Board and ZBA, the Town has decided not to appeal the Land Court’s decision. The decision not to appeal is based on the following key factors: 

• High Standard for Appeals: Appellate courts require a "clear error" standard to overturn trial court findings, making appeals challenging. The Land Court's decision, while disagreed with, was well-reasoned and would be difficult to reverse.
• Focus on Housing: The Town is committed to increasing housing stock, particularly near commuter rail stops, aligning with the MBTA Communities Act. The Symes development falls within the Town’s MBTA Communities Multi-Family Overlay District, and the Town acknowledges the state's focus on addressing the housing crisis.
• Efficient Use of Resources:Instead of investing further in legal fees for an appeal, the Town will focus on:
  • Improving the Earth Removal Bylaw for future projects. 
  • The ZBA will concentrate on developing appropriate conditions for the Symes earth removal permit to minimize impact on neighbors.

By deciding not to appeal, the Town has prioritized addressing the housing needs and improving its bylaws for future projects rather than pursuing a potentially difficult and costly appeal. For more detail, find a memo regarding the matter from town counsel at the link.