Michelle O'Brien

This author Michelle O'Brien has created 6 entries.

Wrong Procedure Costs City $1 Million Judgment Against Developer it Fined for Building Without Permits

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In a striking blow, stripping a city of a judgment of nearly $1 million, the Massachusetts Appeals Court recently reversed a superior court summary judgment awarding fines to the City of Haverhill for a developer’s violations of zoning laws. The city assessed the fines against the developer under the state building code and the local zoning bylaw for building without necessary permits. In Maroney v. Planning Board of Haverhill, the Appeals Court held that the city’s building inspector did not follow the required procedures to impose fines.

The developer, Maroney, had a special permit and subdivision plan approval for a 50‑lot residential subdivision, both of which required him to build a water pressure booster station to service certain lots in the subdivision. The developer built much of the subdivision, in conformance with the process outlined by the city, on lots that the water department considered serviceable. When Maroney attempted to go forward with development of lots that the water department considered

Mass. Appeals Court Broadly Construes Two-Year Bar on Repetitive Zoning Amendments

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In one of its noteworthy zoning decisions of late 2019, the Massachusetts Appeals Court interpreted the “two-year bar” for zoning amendments contained in M.G.L. c. 40A, § 5, sixth par. In Penn v. Town of Barnstable, the Appeals Court affirmed a summary judgment entered by the Land Court and concluded that the Town of Barnstable’s adoption of a zoning amendment calling for the creation of the Hyannis Parking Overlay District (HPOD) violated the two-year bar because the town had rejected a similar proposal just a few months earlier.

In an effort to create uniformity and resolve discrepancies in the management of parking spaces in and around Hyannis Harbor, a subcommittee of the Barnstable Town Council proposed in December, 2015 to amend the town’s zoning ordinance to create the HPOD. The proposed amendment, identified as Item No. 2016‑54, sought to authorize as-of-right certain parking lot operations, with site-development standards governing operation of the lots within the HPOD. After a public hearing

Under Massachusetts Zoning Law, Abutter’s Presumptive Standing to Appeal Can Be Rebutted Even if Unchallenged by Defendant

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There’s no shortage of case law on the issue of standing to maintain a zoning appeal. A case decided by the Appeals Court reminds us why the issue is still being discussed after all these years. In Talmo v. Zoning Board of Appeals of Framingham, 93 Mass. App. Ct. 626 (2018), the court addressed whether a trial judge could determine on his own (without the defendant pressing it) that a direct abutter’s presumptive standing was rebutted. The court concluded that the trial judge properly did so.

In 2009, Talmo sought zoning enforcement from Framingham’s building commissioner requesting that his neighbors, the Buckleys, be ordered to cease using a converted barn as a residence. The Buckleys had lived in the barn since the mid- to late-1980s and raised a family there. The barn was converted to a residence without any permits authorizing the renovation. A building permit was obtained in 2004 for an addition to the barn’s living space.


Trustee of Realty Trust Saved from Application of Merger Doctrine (at least for now)


The merger doctrine is alive and well in Massachusetts zoning law.  In its recent decision in Kneer v. Zoning Board of Appeals of Norfolk, the Appeals Court examined whether the doctrine applies to property owned by a realty trust where a trustee owns abutting property individually.  The Appeals Court disagreed with the way the Land Court applied the doctrine, but remanded the case for additional factual findings to sort out whether the merger doctrine should apply.

Under the merger doctrine, a nonconforming lot that is held in common ownership with an adjoining lot may be deemed “merged” with the adjoining lot to the extent necessary to reduce or eliminate the nonconformity. Case law recognizes that adjoining lots can merge even if they’re nominally owned by different entities. For example, in Planning Board of Norwell v. Serena, a married couple, attempting to avoid the effects of an anticipated change to the zoning bylaw, owned one lot as co-trustees of

Mass. SJC Expands Time for Bringing Property Damage Claims Under Chapter 21E


Lawsuits to recover cleanup costs and property damages resulting from environmental contamination can be expensive and time-consuming. Plaintiffs should be sure their claims are timely before embarking on the litigation path.

M.G.L. c. 21E (Chapter 21E), the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, contains a statute of limitations provision, Section 11A. Until now, the law was reasonably clear on when a property damage claim must be brought. In its recent decision in Grand Manor Condominium Association v. City of Lowell (pdf), the Massachusetts Supreme Judicial Court (SJC) elaborated on the meaning of “damage” under Chapter 21E and redefined what triggers the statute of limitations for a property damage claim. In Grand Manor the SJC ruled that the statute of limitations does not begin to run until the plaintiff learns that the damage to the property “is not reasonably curable by the remediation process.”

Section 11A(4) of Chapter 21E states that claims for property

When is a park constitutionally protected parkland? Mass. SJC re-examines test under Article 97

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In a decision of interest to municipalities, conservation groups, and land use experts, the Massachusetts Supreme Judicial Court (SJC) recently decided that a public playground in the City of Westfield is parkland protected by Article 97 of the Amendments of the Massachusetts Constitution.  Art. 97 provides, in part, that property “taken or acquired” for conservation purposes “shall not be used for other purposes” without approval by a two-thirds vote of each branch of the state legislature.  In Smith v. City of Westfield, the SJC expanded the reach of Art. 97 by concluding that municipal parkland may be protected even without a recorded restriction, provided the land has been dedicated as a public park.

The case concerned the Cross Street Playground in Westfield, a 5.3 acre parcel that is home to two baseball fields and a playground.  It has been a public playground for more than 60 years.  In 1979, Westfield received a grant from the federal government under the Land and Water