appeal

  • 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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  • 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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  • 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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