Zoning

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

Man Bites Dog: Real Estate Developer SLAPPs Objecting Abutters’ Claims

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A decision late last year from the Massachusetts Supreme Judicial Court (SJC), 477 Harrison Ave., LLC v. JACE Boston, LLC (pdf), gives real estate developers a surprising new weapon when confronted by litigious neighbors.

The dispute began in 2012, when the plaintiff developer obtained zoning relief to redevelop a residential property in Boston’s South End. After several years of legal challenges by abutting property owners, the developer abandoned that zoning relief and pursued a new project that appeared to require no zoning relief. When it turned out the developer’s new project did require zoning relief, the abutters seized the opportunity to appeal the new zoning relief as well.

While the abutters’ new appeal was pending, the developer filed a separate case against them alleging abuse of process and violations of the Massachusetts unfair trade practices statute, M.G.L. c. 93A (Chapter 93A). After the abutters’ efforts to dismiss the new case were rejected, they filed counterclaims

In Rare Move, SJC Enters Immediate Order Reversing Decision That Broadened Density-Based Standing in Zoning Appeals

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In what passes for high drama in the world of Massachusetts land use law, the Supreme Judicial Court (SJC), after hearing oral argument last Thursday in an important case involving standing in zoning appeals, entered an order the next day reversing the Appeals Court decision under review and reinstating the trial court’s decision dismissing the complaint. The SJC’s order reads simply, “The judgment of the Land Court dated June 5, 2018, dismissing the plaintiffs’ complaint for lack of standing, is hereby affirmed. Opinion to follow.”

The case is Murchison v. Zoning Bd. of Appeals of Sherborn. The Appeals Court’s decision, which came out last fall, caused a mini-earthquake within the real estate development bar. The case involves a neighbor’s challenge to a building permit authorizing the construction of a house on a vacant lot that the neighbor claims doesn’t meet the applicable lot-width requirement. The lot, which is wooded, is across a street from the neighbor’s house. Both lots are

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

Mass. SJC Reaffirms that Zoning Exemption for Educational Uses is Expansive; Residential Psychiatric Program for Adolescents Easily Qualifies

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In a noteworthy decision today, the Supreme Judicial Court (SJC) reaffirmed that the exemption in the state’s Zoning Act, M.G.L. c. 40A, for uses deemed to be “for educational purposes,” is construed very broadly.  That exemption, which appears in Section 3 of Chapter 40A and is known as the Dover Amendment, provides in relevant part that:

[n]o zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for religious purposes or educational purposes on land owned or leased by . . . a religious sect or denomination, or by a nonprofit educational corporation . . . .

The statute goes on to say that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures, yard sizes, lot area, setbacks, open space, etc.

In The McLean Hospital Corp. v. Town of Lincoln (pdf), the high court considered a

Mass. Legislature Weighs Changes to Zoning Act; Quick Decision on Plaintiff’s Standing is Proposed

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Two bills pending at the Massachusetts State House would amend the state Zoning Act, known as Chapter 40A, which governs zoning in every Massachusetts city and town except Boston. The Zoning Act is seldom amended, even though courts and land use lawyers are well aware of its shortcomings. This is no doubt because zoning is often a hotly-contested political issue. But commonsense changes to Chapter 40A, while difficult to accomplish, can yield significant benefits for all concerned with real estate development in the Commonwealth.

Will Standing Determination be Front-loaded?

A bill introduced in the Massachusetts Senate, Senate Bill 1024 (pdf), tackles one of the most vexatious aspects of zoning for developers – the standing of abutters to sue. Standing is a prerequisite for filing a case in court; generally speaking, to have standing to sue, plaintiffs must show they’re harmed or that their rights are impacted in some material way. In other contexts a defendant can quickly move to dismiss

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

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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

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.

The

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

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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, §

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

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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