• December 09, 2021

Appeals Court Resurrects Neighbors’ Claims Against Noisy Vineyard Venue

Zoning
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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

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  • September 21, 2021

Mass. High Court: Three-Year Clock for Wetlands Protection Act Enforcement Actions Re-Starts With Every Sale of Property

Environmental, Land Use, Wetlands
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The Massachusetts Supreme Judicial Court (SJC) recently handed a victory to a conservation commission seeking to impose an enforcement order on a property owner who bought land containing unauthorized fill placed there by a prior owner 35 years before.  The SJC ruled that the “statute of repose” in the state Wetlands Protection Act, which protects property owners from enforcement for prior violations in certain situations, does not run with the land.

The Wetlands Protection Act, M.G.L. c. 131, § 40 (the Act), generally prohibits removing, filling, or altering wetlands without an order of conditions from a local conservation commission.  The Act also provides that “[a]ny person” who acquires property on which work has been done in violation of the Act shall restore the property to its original or permitted condition; but the Act limits the time period during which an enforcement action against “such person” may be brought.  Specifically, an action must be brought within three years of the recording of the deed (or

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  • July 28, 2021

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

Zoning
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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

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  • June 07, 2021

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

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

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  • May 26, 2021

Somerville Urban Renewal Taking Survives Challenge

Eminent Domain, Urban Renewal
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In Cobble Hill Center LLC v. Somerville Redevelopment Authority (pdf), the Massachusetts Supreme Judicial Court (SJC) upheld the eminent domain taking by the Somerville Redevelopment Authority (SRA) of 3.99 acres of land located at 90 Washington Street in Somerville.

Cobble Hill, the owner of the parcel, argued that the taking was improper because there was no approved urban renewal plan that covered its property, and the SRA could only take by eminent domain property that is included within an approved urban renewal plan.  The SRA countered that the provisions of M.G.L. c. 121B, § 46(f) (§ 46(f)) authorized the taking.

Takings by the Boston Redevelopment Authority (BRA) under § 46(f) were the subject of a 2019 SJC opinion in Marchese v. Boston Redevelopment Authority, in which the court upheld the BRA’s taking of easement rights which rights were then transferred to the Boston Red Sox for use for Fenway Park.  While Marchese

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  • April 19, 2021

Fate of Municipal Harbor Plans Thrown Into Question

Chapter 91
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The Superior Court’s April 1, 2021 decision in Armstrong v. Theoharides (pdf) was no April Fool’s joke and could have far-reaching consequences for Massachusetts waterfront development.  In a case against the Secretary of Energy and Environmental Affairs (EEA) brought by the Conservation Law Foundation and residents of the Harbor Towers condominium complex in Boston, the court sided with the plaintiffs and found that the Secretary exceeded her authority in approving the Boston Downtown Waterfront District Municipal Harbor Plan (the Boston Waterfront MHP). That approval would have allowed the construction of a 600-foot-tall tower at the site of what is now the Aquarium Garage, as well as the development of the Hook Lobster site, both on Atlantic Avenue in Boston.

Municipal Harbor Plans (MHPs) are codified in EEA regulations at 301 CMR 23.00 et seq. (the MHP Regulations) and affect licensing by the Department of Environmental Protection (DEP) under the state’s Public Waterfront Act, M.G.L. c. 91 (Chapter 91), and its

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  • March 05, 2021

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

Zoning
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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

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  • September 30, 2020

Mass. High Court Declines to Expand Prior Public Use Doctrine

Easements, Real Estate
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In its decision last week in Town of Sudbury vs. Massachusetts Bay Transportation Authority, the Massachusetts Supreme Judicial Court (SJC) declined to expand the reach of the common-law prior public use doctrine. As the court explained, “[u]nder this long-standing doctrine, public lands acquired for one public use may not be diverted to another inconsistent public use unless the subsequent use is authorized by plain and explicit legislation.” In this case the Town of Sudbury sought to prevent the defendant Massachusetts Bay Transportation Authority (MBTA) from entering into an easement agreement with Eversource for the installation and maintenance of an underground transmission line on an unused 9-mile right of way, approximately 4.3 miles of which is located in Sudbury.

The Town of Sudbury urged the court to find that use of the right of way by Eversource violated the prior public use doctrine because the MBTA’s transportation use was inconsistent with the electric transmission line use by Eversource, which the Town argued

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  • August 19, 2020

Not Your Grandfather’s Nonconforming Structure: Mass. Appeals Court Discusses Difference Between Increasing an Existing Nonconformity and Creating a New One

Land Use, Real Estate, Zoning
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In perhaps a sign of the linguistic times, Appeals Court Justice James R. Milkey’s  opinion in the case of Comstock v. Zoning Board of Appeals of Gloucester received more media coverage for certain racial history commentary in a footnote than for the central zoning principles at stake. Yet, for zoning lawyers, there is far more to the ruling than the footnote.

First, Justice Milkey’s linguistic footnote: In Massachusetts and elsewhere, uses and structures in place prior to the effective date of various zoning and other regulations have long been referred to as “grandfathered.” In footnote 11 of its decision, the court acknowledges the “racist origins” of the term due to its prior use in the context of Reconstruction Era voter suppression. Certainly, the court is correct that the concept of time-exempted structures and uses can be discussed with other, less controversial, phrasing, and this post will do so.

Back to zoning. The extent to which a preexisting nonconforming structure can

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  • July 24, 2020

Breaking: Massachusetts Attorney General Strikes Down Municipality’s Attempt to Ban Gas Installations in Buildings

Construction, Environmental, Real Estate
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On July 21, 2020, Massachusetts Attorney General Maura Healey struck down a by‑law passed by the Town of Brookline that would have disallowed most construction that included “fossil fuel infrastructure.” The Attorney General’s decision can be found here. This by-law would have prevented gas installations in new or substantially renovated buildings and would have required heat, hot water, and appliances to be all electric starting in 2021, with certain exemptions.

The Attorney General’s Municipal Law Unit is tasked with review of town by‑laws to assure they don’t conflict with state laws or the state constitution. This review is limited, and usually by-laws are approved unless there is a direct conflict. The Attorney General acknowledged the climate change policy behind the Brookline by-law, but confirmed that local laws cannot: (1) conflict with the state building code, (2) conflict with the state gas code, or (3) conflict with state law giving the Department of Public Utilities control over gas distribution.

The Supreme Judicial

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