Land Use

  • 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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  • 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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  • March 09, 2020

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

Zoning
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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

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  • August 26, 2019

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

Land Use, Zoning
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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

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  • June 28, 2019

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

Land Use, Zoning
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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

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  • December 13, 2018

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

Land Use, Zoning
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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, §

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  • 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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  • 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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  • December 05, 2017

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

Restrictions
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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

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