Zoning

  • October 24, 2018

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

Zoning
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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

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  • June 13, 2018

Troubleshooters and Why Words Matter: Appeals Court Overturns Board’s Interpretation of Zoning Bylaw

Zoning
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As municipalities assert more control over development, zoning bylaws become more complex. And as mechanics, programmers, and lawyers all know, when there are many parts, there are many more opportunities for things to go wrong. Hence, the value of troubleshooting.

Provincetown learned this the hard way. In Sinaiko v. Zoning Board of Appeals of Provincetown, the building inspector’s interpretation of a zoning bylaw prevailed before the local zoning board and the Superior Court, only to be overturned by the Appeals Court because the bylaw had not been de-bugged.

Sinaiko concerns a zoning bylaw intended to regulate the size of all new buildings and additions in Provincetown – an effort to ensure a “relatively consistent and harmonious scale within neighborhoods.” The bylaw limits the size of by-right construction of a new building or expansion of an existing building. For new construction, the by-right limit is 25% larger than the average size of buildings within 250 feet of the “center of the

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  • May 23, 2018

Mass. Appeals Court Ventures Onto High Wire of Zoning Standing Doctrine, Answers Vexing Question

Zoning
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It’s about time!  Not since the notable 1961 adverse possession case Kershaw v. Zecchini have real estate litigators had an important decision inspired by circus performers.

In its recent decision in Murrow v. ESH Circus Arts, LLC, the Appeals Court answers a question that concurring Justice Peter J. Rubin notes “has vexed the judges of the trial court, who have reached different conclusions about it.”  In zoning appeals under M.G.L. c. 40A (the Zoning Act), plaintiffs may have the benefit of a rebuttable presumption that they are “persons aggrieved” – meaning they have standing to appeal.  This judicially-created presumption, which originated in the 1957 case Marotta v. Board of Appeals of Revere, is conferred on “parties in interest” as described in Section 11 of the Zoning Act.  Section 11 defines “parties in interest” as:

the petitioner [i.e., the applicant for zoning relief], abutters, owners of land directly opposite on any public or private

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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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  • December 04, 2017

Mass. SJC Says Chapter 40B Doesn’t Authorize Override Of Municipally-Held Property Restriction

Affordable Housing, Restrictions, Zoning
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In its recent decision in 135 Wells Avenue, LLC v. Housing Appeals Committee (pdf), the Massachusetts Supreme Judicial Court (SJC) confirmed that a property restriction held by a municipality cannot be overridden by the municipality’s zoning board of appeals – or by the state’s Housing Appeals Committee (HAC) – when acting on an application for a comprehensive permit under M.G.L. c. 40B.  Chapter 40B is the Massachusetts statute that promotes the construction of affordable housing.

In 2014, a developer, 135 Wells Avenue LLC, applied to the City of Newton Zoning Board of Appeals (ZBA) for a comprehensive permit to build a 334-unit residential development on a 6.3-acre lot in the city’s Wells Avenue Office Park. The lot is part of a larger parcel that is subject to a property restriction held by the city.  This restriction limits the permissible uses on that larger parcel to certain uses allowed in Newton’s limited manufacturing zoning district.  Residential uses are not allowed.  The developer argued that the

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  • March 16, 2017

Safety Issue Can Be “Hardship” Justifying A Zoning Variance

Variances, Zoning

The Massachusetts standard for granting a zoning variance is notoriously difficult to meet.  In a nutshell it requires proof that: (1) due to circumstances concerning soil conditions, the shape of the lot, or the topography of the land; which (2) especially affect the land but not the zoning district generally; (3) literal enforcement of the zoning ordinance would cause a substantial hardship (financial or otherwise); and (4) relief can be granted without substantial detriment to the public good; (5) without nullifying or substantially derogating from the intent or purpose of the ordinance.  See M.G.L. c. 40A, § 10.  Each requirement must be met and the courts tell us variances should be “sparingly granted.”  As a result, while zoning boards issue variances with some frequency, the percentage of those variances that meet the standard and would survive judicial scrutiny is relatively small.  A new, easier-to-meet variance standard is a perennial feature of the zoning reform bills that are introduced each year in the Legislature and, so

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