Mulligans, the practice of allowing a player to “redo” their prior shot, are the rule rather than the exception when I (try to) play golf.  My golf game has never been very good and without a few (dozen) mulligans I simply cannot finish a course.  When it comes to developing a piece of land, however, I would avoid a “Mullingan redo” at all cost.  Development projects are expensive and businesses in our region often work in multiple states.  To enterprising developers looking to pursue projects in Massachusetts, beware; the law in this state is very different from that of our Rhode Island neighbor.  A creative attorney for a NIMBY (“Not In My Back Yard”) abutter may force a “Mullingan redo” if certain formalities are not observed during local board hearings.

            The “Mullingan redo” I am referring to concerns what many practitioners and local government officials call the “Mullin Rule.”  This “rule” takes its name from Mullin v. Board of Appeals of Brewster, where the Massachusetts Court of Appeals invalidated a special permit issued by the Brewster Planning Board.  In Mullin, the issue before the Appeals Court was whether four of the seven members of the Brewster Planning Board properly voted to issue a special permit to construct a planned unit development when three members had missed the only public hearing on the issue.  In invalidating the board’s decision, the Appeals Court held that all members of a local board who are to join in a judicial or quasi-judicial decision must have attended the public hearing(s) held on the issue.

            Since Mullin, the Supreme Judicial Court has reinforced this rule while the General Court (state legislature) has provided a way for municipalities to limit its application – confusing the rule’s application rather then resolving it.  What this means for enterprising developers applying for a site plan, special permit, or other decisions of a local board requiring public hearings is the risk of significantly increased transaction costs along with burdensome development delays.  If a member of the local board in question misses a meeting, for any reason, the decision of that board could later be invalidated, through costly litigation, forcing a “Mullingan redo” of the entire process.

            Developers that primarily work in Rhode Island may be surprised by this Massachusetts quirk.  Courts in our neighboring state provide local boards with a presumption that their judicial or quasi-judicial decision was made soundly.  They have even held a council’s decision to be valid even though only three of the seven council members voting were present during all parts of the meetings when hearings on the subject were held.  The Rhode Island court presumed that all seven council members who voted in favor of the decision did so after educating themselves about the evidence pertaining to the merits of the petition before voting thereon.  While this approach may seem rational, it is not the rule in Massachusetts.

            My closing advice to businesses pursuing land development in Massachusetts is to seek out legal counsel sooner rather than later.  Attorneys experienced in real estate and land use law will be able to do far more to assist you if you retain them before any public hearings begin.  Attorneys like Philip Beauregard and Richard Burke have handled countless applications requiring public hearings before local boards, and, when necessary, have successfully litigated favorable outcomes.  I have also had my share of experience and can comfortably claim that my land use expertise far exceeds my golf game.  Regardless of which attorney you choose, you should avoid a “Mullingan.”  As the old saying goes: “an ounce of prevention is worth a pound of cure” and retaining legal counsel sooner rather than later may just help you avoid “redoing” a decision in the court system that should have been settled efficiently, in your first shot, by a local board.