Zoning

  • April 18, 2023

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

Environmental, Renewable Energy, Zoning
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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

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  • March 02, 2023

Mass. AG Clamps Down on Local Solar and Battery Storage Moratoria

Environmental, Renewable Energy
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Late last year, pursuant to her review authority under M.G.L. c. 40, § 32, then-Attorney General (now Governor) Maura Healey (the AG) issued a decision disapproving the Town of Carver’s moratoria on large-scale solar projects and battery storage systems. The grounds for the decision were straightforward and well-supported: citing the Supreme Judicial Court’s June, 2022 decision in Tracer Lane II Realty, LLC v. City of Waltham (see our blog post on that important opinion), and case law disfavoring moratoria generally, the AG determined that Carver’s moratoria violated M.G.L. c. 40A, § 3 (Section 3) by unlawfully restricting solar and battery storage systems “with no articulated evidence of an important municipal interest, grounded in protecting the public health, safety, or welfare […] sufficient to outweigh the public need for solar energy systems.” The AG found that instead of promoting the policy behind Section 3, the moratoria “undermined the state policy favoring solar energy” and that the town’s interest

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  • December 20, 2022

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

Affordable Housing, Land Use, Zoning
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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

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  • June 03, 2022

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

Environmental, Zoning
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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

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  • May 20, 2022

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

Zoning
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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

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  • 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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  • 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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  • March 05, 2021

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

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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 21, 2020

Mass. Appeals Court Clarifies How Zoning Cases Can – and Can’t – Be Settled

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The Massachusetts Appeals Court recently decided that a settlement agreement resolving a zoning case brought by the Town of Bourne did not prevent neighbors from obtaining zoning enforcement inconsistent with that settlement. The case, Stevens v. Zoning Board of Appeals of Bourne, involved the use of a property in a residential zoning district as a wedding venue (commercial uses were not allowed). There were two sequential cases involving challenges to the use.

The first case arose from the building inspector’s cease and desist order to the property owner requiring a complete halt to the commercial use. The Town then brought a case in Land Court to enforce the order. That case was settled by an agreement between the Town’s administrative board and the property owner. The settlement agreement included dismissal of the Land Court case with prejudice. Critically, the Land Court did not decide whether the challenged use was lawful. The Building Inspector issued a new cease and desist order consistent with the

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