Real Estate

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

When Your Neighbor’s Tree Blots Out the Sun, Can You Force Them to Take It Down? Not In Massachusetts

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Imagine owning your dream house. You have your pool, your barbeque area, your big lawn for the kids to play on. You’ve worked your whole life for this, and now you have it. It’s perfect. Well, except for your neighbor’s overgrown 100-foot tall sugar oak. It’s so massive it blots out the sun. Your yard is bathed in perpetual shade. Your roof is covered in moss. You’re pretty sure you could grow mushrooms commercially. You complain to your neighbor. You mention cutting it down, or at least trimming it back. He laughs at you. That’s your breaking point. You’ve had enough. It’s time to sue him, right? Sure – just not in Massachusetts.

A case called Shiel v. Rowell (pdf) presents the age-old question of how society should resolve pesky disputes between neighbors involving trees. Should the courts impose reciprocal responsibilities on the neighbors, requiring them to consider the harm their healthy tree may cause to their neighbors

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

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

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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

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

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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

Appeals Court Interprets Chapter 91 License as Extending Private Way Over Lawfully Filled Land

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The Appeals Court’s recent decision in Maslow v. O’Connor at first glance appears straightforward. The holding reiterates a familiar tenet of Chapter 91 licensing – that a Chapter 91 license doesn’t affect pre-existing property rights. But the result is quirky: in the name of preserving access to tidelands, the court in effect extends a private way over filled tidelands in which public trust rights (the right to “fish, fowl and navigate”) have been extinguished.

The basic facts in Maslow are:

  • Plaintiffs own lots abutting Rackliffe Street in Gloucester, which runs north-south and originally extended to the mean high water mark of Wonson’s Cove.
  • Defendants own waterfront lots on either side of Rackliffe Street at its southerly end.
  • In 1925, defendants’ predecessor was granted a Chapter 91 license authorizing her to build a seawall and place fill behind it, which created a strip of upland (the grassy strip) between the end of Rackliffe Street and

Mass. SJC Expands Time for Bringing Property Damage Claims Under Chapter 21E

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Lawsuits to recover cleanup costs and property damages resulting from environmental contamination can be expensive and time-consuming. Plaintiffs should be sure their claims are timely before embarking on the litigation path.

M.G.L. c. 21E (Chapter 21E), the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, contains a statute of limitations provision, Section 11A. Until now, the law was reasonably clear on when a property damage claim must be brought. In its recent decision in Grand Manor Condominium Association v. City of Lowell (pdf), the Massachusetts Supreme Judicial Court (SJC) elaborated on the meaning of “damage” under Chapter 21E and redefined what triggers the statute of limitations for a property damage claim. In Grand Manor the SJC ruled that the statute of limitations does not begin to run until the plaintiff learns that the damage to the property “is not reasonably curable by the remediation process.”

Section 11A(4) of Chapter 21E states that claims for property

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

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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

Mass. Appeals Court Clarifies Requirements For Extending Common-Scheme Real Estate Restrictions Beyond 30 Years

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In its decision today in Berger v. 2 Wyndcliff, LLC (pdf), the Massachusetts Appeals Court answered an important question about extending common-scheme real estate restrictions beyond the presumptive statutory limit of 30 years.  As to restrictions imposed as part of a common scheme applicable to four or more contiguous lots, M.G.L. c. 184, § 27 states in relevant part that an otherwise enforceable restriction cannot be enforced after 30 years:

unless . . . provision is made in the instrument or instruments imposing it for extension for further periods of not more than twenty years at a time by owners of record, at the time of recording of the extension, of fifty percent or more of the restricted area in which the subject parcel is located, and an extension in accordance with such provision is recorded before the expiration of the thirty years or earlier date of termination specified in the instrument . . . .

Berger