Zoning

Roma, III, Ltd. v. Board of Appeals of Rockport: Did the Supreme Judicial Court “Pave the Way” for Local Control of Drones?

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Earlier this year, the Supreme Judicial Court (SJC) issued a relatively straightforward decision concerning heliports, home rule authority, and preemption – Roma, III, Ltd. v. Board of Appeals of Rockport (pdf). The decision held that a municipality could exercise its home rule authority to regulate private heliports and other non-commercial aircraft landing areas, and that neither state nor federal law preempts this local control. At the time, Roma did not seem blog-worthy. This is Massachusetts. Home rule is important.

And who could consider it sound policy to prohibit municipalities from regulating private aircraft landing activity, especially in industrial and commercial zoning districts? Not even a zealous Aeronautics Commission would want the responsibility of reviewing – and then approving, revising, or denying – proposed regulations for private landing areas in each of Massachusetts’ 351 towns and cities.

But then I thought about it differently. Allowing a municipality to regulate – even prohibit – a private

Mass. SJC Says Chapter 40B Doesn’t Authorize Override Of Municipally-Held Property Restriction

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In its recent decision in 135 Wells Avenue, LLC v. Housing Appeals Committee (pdf), the Massachusetts Supreme Judicial Court (SJC) confirmed that a property restriction held by a municipality cannot be overridden by the municipality’s zoning board of appeals – or by the state’s Housing Appeals Committee (HAC) – when acting on an application for a comprehensive permit under M.G.L. c. 40B.  Chapter 40B is the Massachusetts statute that promotes the construction of affordable housing.

In 2014, a developer, 135 Wells Avenue LLC, applied to the City of Newton Zoning Board of Appeals (ZBA) for a comprehensive permit to build a 334-unit residential development on a 6.3-acre lot in the city’s Wells Avenue Office Park. The lot is part of a larger parcel that is subject to a property restriction held by the city.  This restriction limits the permissible uses on that larger parcel to certain uses allowed in Newton’s limited manufacturing zoning district.  Residential uses are not allowed.  The developer argued that the

Safety Issue Can Be “Hardship” Justifying A Zoning Variance

The Massachusetts standard for granting a zoning variance is notoriously difficult to meet.  In a nutshell it requires proof that: (1) due to circumstances concerning soil conditions, the shape of the lot, or the topography of the land; which (2) especially affect the land but not the zoning district generally; (3) literal enforcement of the zoning ordinance would cause a substantial hardship (financial or otherwise); and (4) relief can be granted without substantial detriment to the public good; (5) without nullifying or substantially derogating from the intent or purpose of the ordinance.  See M.G.L. c. 40A, § 10.  Each requirement must be met and the courts tell us variances should be “sparingly granted.”  As a result, while zoning boards issue variances with some frequency, the percentage of those variances that meet the standard and would survive judicial scrutiny is relatively small.  A new, easier-to-meet variance standard is a perennial feature of the zoning reform bills that are introduced each year in the Legislature and, so