Land Use

  • June 28, 2019

Mass. High Court Says Not All Divisions of Land Require Planning Board Approval, Dismisses Prospect of “Wild Deeds”

Land Use, Zoning
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In its recent decision in RCA Development, Inc. v. Zoning Board of Appeals of Brockton (pdf), Massachusetts’ Supreme Judicial Court (SJC) considered whether a division of land into two lots accomplished solely by deeds describing the new lots, with no plan having been drawn or approved by the local planning board, is valid. Without hesitation the SJC held that it is.

In 1964 the owner of a lot in Brockton conveyed the northern half of the lot to the owner of a northerly abutting lot, and the southern half of the lot (the locus) to the owner of a southerly abutting lot. Each half of the original lot independently complied with the then-existing frontage, lot-depth, and area requirements. Going forward, the locus and the southerly abutting lot were conveyed together but continued to be separately described. At some point a house was built on the southerly abutting lot but the locus remained vacant.

In 2016 the plaintiff applied for a permit to

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  • February 28, 2019

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

Land Use, Zoning
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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.

The

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  • December 13, 2018

Late-Filed Appeal to Zoning Board is a Nullity, Not a Springboard to Constructive Approval

Land Use, Zoning
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The Massachusetts Appeals Court’s recent decision in McIntyre v. Zoning Board of Appeals of Braintree demonstrates the importance of subject matter jurisdiction in the context of administrative proceedings.  The plaintiffs appealed the issuance of a building permit authorizing construction of a single-family house on an abutting lot.  Though they knew immediately that the permit had issued, the plaintiffs didn’t file their appeal until 44 days later, well past the 30-day deadline imposed by M.G.L. c. 40A, § 15.  Despite the lateness of the appeal, the Braintree zoning board of appeals (ZBA) held two hearings before determining that it had no jurisdiction to consider the merits of the appeal.  At the second hearing the ZBA voted unanimously to deny the appeal but did not issue a written decision that day.

If these were all the facts there probably wouldn’t have been a court case.  But of course there’s more.  The same statute that imposes the filing deadline – M.G.L. c. 40A, §

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  • March 02, 2018

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

Land Use, Zoning
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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

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