Supreme Court’s Sheetz decision casts doubt on validity of Massachusetts inclusionary zoning regulations


The U.S. Supreme Court’s recent decision in Sheetz v. County of El Dorado may have a profound impact on inclusionary zoning ordinances and bylaws in Massachusetts. I suspect few of those regulations – if challenged – will pass constitutional muster under what’s now a quartet of crucial, related Supreme Court (SCOTUS) decisions: Nollan v. California Coastal Commission (1987), Dolan v. City of Tigard (1994), Koontz v. St. Johns River Water Management District (2013), and Sheetz. For purposes of this post, “inclusionary zoning” means zoning regulations that require new residential developments to include a certain number or percentage of affordable housing units or that authorize a payment of money in lieu of providing the required units.

First, some background.

In Nollan the plaintiffs applied for a permit to expand their Southern California beach bungalow. The defendant commission, applying state law, conditioned issuance of the permit on the Nollans’ granting a public access

Mass. Appeals Court Highlights Workaround for Identifying a Public Way

Practice area:

The quality of a property’s frontage on a street or way can define its development potential and therefore its value. The gold standard, which will allow a comfortable check in the ‘frontage’ box in most Massachusetts municipalities, is having the amount of frontage required by the local zoning regulation on a public way. Not every city and town has a clean list of public ways, and there are often cost-based disincentives to declaring a way to be public when the status is unclear. An Appeals Court case decided last week, Barry v. Planning Board of Belchertown (pdf), confirms that there’s a seldom-discussed method of establishing that property fronts on a public way – estoppel.

There are three means of creating a “public” way in Massachusetts. See Fenn v. Town of Middleborough. The first method fell out of use in 1846 due to a change in the law. This involved dedicating the way to public use and the public accepting