Zoning

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

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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

Does the 9th Circuit’s rejection of Berkeley, CA’s municipal gas ban spell doom for Massachusetts’ own gas-banning “Demonstration Program”?

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We bring to your attention this post by our colleague Randy Rich of Pierce Atwood’s Energy Infrastructure Group on the 9th Circuit’s decision earlier this week in California Restaurant Association v. City of Berkeley, No. 21-16278. The court decided that the federal Energy Policy and Conservation Act, 42 U.S.C. § 6297(c), preempts the City of Berkeley’s ordinance banning natural gas piping within newly constructed buildings. Interestingly, the Commonwealth of Massachusetts was part of a group of states that filed an amicus brief urging the 9th Circuit to find no federal preemption and thus uphold the Berkeley ordinance.

Although the 9th Circuit’s decision isn’t legally binding here, we wonder how it will affect efforts to ban the use fossil fuels in the Commonwealth. Section 84 of Chapter 179 of the Acts of 2022 (pdf) authorizes the Mass. Department of Energy Resources (DOER) to establish a demonstration program allowing 10 cities and towns to adopt general or zoning

New Mass. AG continues hard line against local bylaws that hinder battery energy storage systems

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On March 1, 2023, Massachusetts Attorney General Andrea Joy Campbell’s Municipal Law Department issued a decision (pdf) disapproving two sections of the Town of Wendell’s amended zoning bylaw, one of which prohibited stand-alone battery energy storage facilities in all districts. As previewed in our blog post last month, based on a footnote in the former AG’s disapproval of the Town of Carver’s zoning moratoria on battery storage systems, Attorney General Campbell has taken the position that M.G.L. c. 40A, § 3 (colloquially known as the Dover Amendment) protects battery storage systems as “structures that facilitate the collection of solar energy”– even as stand-alone systems.

In the case of Wendell, the proposed bylaw amendment, which allowed battery storage in conjunction with solar installations but prohibited commercial or industrial-scale battery storage, was not, in the Attorney General’s view, “grounded in articulated evidence of public health, safety or welfare concerns sufficient to justify the prohibition.” There was no evidence in the record

Mass. High Court Clarifies Scope of New Zoning Act Bond Provision

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The Supreme Judicial Court (SJC) last week gave real estate litigators an early holiday gift: an important, clarifying opinion on a recent amendment to Section 17 of M.G.L. c. 40A (the Zoning Act), which governs appeals to court from decisions of local zoning boards. The case is Marengi v. 6 Forest Road, LLC (pdf).

In 2020, as part of a wide-ranging economic development bill intended to spur housing production, the Legislature added (effective January, 2021) the following paragraph to Section 17:

The court, in its discretion, may require a plaintiff in an action under this section appealing a decision to approve a special permit, variance or site plan to post a surety or cash bond in an amount of not more than $50,000 to secure the payment of costs if the court finds that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or

Breaking: Mass. High Court Expansively Interprets Zoning Exemption for Solar Energy

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Massachusetts has committed to increasing the generation of electricity from renewable energy sources, such as solar power, through a series of laws and policies. As solar energy systems have proliferated, trial courts have been asked to determine the limits of local government power over where large ground-mounted solar energy facilities can be sited. For the first time, the Massachusetts Supreme Judicial Court (SJC) has interpreted statutory language enacted decades ago that exempts solar energy systems from zoning regulation. In its decision yesterday in Tracer Lane II Realty, LLC v. City of Waltham (pdf), the SJC acknowledged the need for large ground-mounted solar arrays to meet the Commonwealth’s renewable energy goals.

Section 3 of the Massachusetts Zoning Act (Section 3) – aptly named “Subjects which zoning may not regulate” – protects certain favored uses from local zoning laws. At issue in Tracer Lane was the ninth paragraph of Section 3, which concerns solar energy systems. The plaintiff solar

Appeals Court Excuses City’s Notice-by-Mail Fail

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Today the Appeals Court decided Markham v. Pittsfield Cellular Telephone Company (pdf), holding that the 90-day appeal period under M.G.L. c. 40A, § 17 for zoning appeals alleging procedural defects is not tolled where a zoning board failed to give notice of a special permit hearing by mail, but did provide notice by publication and by posting at city hall.

Several residents of Pittsfield tried to challenge a special permit that the Pittsfield Zoning Board of Appeals granted to the defendant telephone company more than two years earlier. The plaintiffs claimed they lacked any notice of the special permit at the time it was granted or within 90 days thereafter. M.G.L. c. 40A, § 11 requires that notice be given to “parties in interest” such as the plaintiffs in three ways: 1) by publication in a newspaper, 2) by posting in city hall, and 3) by mail. The trial judge found that the zoning board complied with the

Appeals Court Resurrects Neighbors’ Claims Against Noisy Vineyard Venue

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In its recent decision in Allegaert v. Harbor View Hotel Owner, LLC, the Massachusetts Appeals Court reversed in part two Superior Court judgments dismissing the plaintiffs’ zoning appeals. In the process the Appeals Court helpfully clarified some procedural issues that often arise in such cases.

The plaintiffs in Allegaert are neighbors of the Harbor View Hotel in Edgartown. The hotel is a longstanding nonconforming use in what is now a residential neighborhood. In the early 1990s the hotel received special permits to serve food and beverages in certain outdoor areas. In 2019 the hotel applied for a new special permit to replace an existing pool bar with a new bar near the pool but outside the pool fence. The Edgartown zoning board posted and published notice of the hotel’s application and claims to have sent notice by mail to abutters and other parties-in-interest as required by M.G.L. c. 40A, § 11. After a public hearing the board

To Meet Zoning Frontage Requirement, “Linear Feet” Need Not be in a Straight Line

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Earlier this month in Perry v. Zoning Board of Appeals of Hull (pdf), the Appeals Court considered whether only a straight line along a private way constitutes “frontage” under the local zoning bylaw.

Don Perry objected to his neighbors, Anne Veilleux and Charles Williams, constructing a house on their property in Hull. He raised a number of claims with respect to the issuance of a building permit for the project, including that the Zoning Board of Appeals (Board) improperly interpreted the local zoning bylaw with respect to its definition of “lot frontage.” Perry argued that “frontage” consists only of the straight line which is the sideline of the way providing access to the property, because the bylaw measures frontage in “linear feet.” The Hull Building Inspector determined that the sideline plus the length along the end of the private way, which was at an angle to the sideline, was the appropriate measure of frontage.

On appeal the issue was what constitutes frontage

BREAKING: Mass. SJC Rules on Compatibility of Short-Term Rentals with Single-Family Zoning

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The Massachusetts Supreme Judicial Court (SJC) today weighed in on the zoning permissibility of short-term rentals, a much-contested and important area of concern.

In its decision in Styller v. Zoning Board of Appeals of Lynnfield (pdf), the SJC affirmed a Land Court decision concerning an appeal from a decision of the Lynnfield Zoning Board of Appeals (ZBA), which affirmed a cease-and-desist order prohibiting short-term rentals (STRs) of the plaintiff Styller’s property without a special permit.

Styller owned a five-bedroom single-family house on three aces in a single-residence zoning district.  The Styller family lived on the premises. Beginning in 2015, Styller rented the property through various short-term rental websites. The STR use came to the town’s attention after a renter held a 100+ person party at the property, during which one attendee was shot and killed. The Building Inspector sent a cease-and-desist notice, concluding that the STR use was an “additional” use: either a prohibited hotel use or an unauthorized lodging or rooming

Mass. Appeals Court Imports Chapter 40A Presumption of Standing into Boston Zoning Enabling Act

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A recent decision of the Massachusetts Appeals Court, Porter v. Board of Appeal of Boston (pdf), addressed the question of standing to appeal a variance granted by the Board of Appeal of Boston (“BOA”).  Zoning in Boston is governed by c. 665 of the Acts of 1956, as amended (the “Enabling Act”), not by M.G.L. c. 40A (the “Zoning Act”), which applies to all other cities and towns in Massachusetts. See Emerson College v. City of Boston, 393 Mass. 303 (1984).  In Porter, the Appeals Court applied to the Enabling Act standards and legal reasoning that are derived from unique language in the Zoning Act.  The court found that parties entitled to receive notice under the Zoning Act are presumed to have standing under the Enabling Act.

The pro se plaintiff in Porter appealed a variance granted to a nearby property owner. In his complaint, the plaintiff claimed to be