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Massachusetts Land Court Affirms Building Permit in Zoning Case

The Massachusetts Land Court issued an opinion regarding a zoning appeal in Reeve v. Godfrey (Mass. Land Ct. July 12, 2016). The building commissioner issued a building permit for the construction of a single-family home in the same location as a former dwelling. The plaintiffs and other neighboring homeowners appealed the permit to the zoning board, arguing that the lot did not have a sufficient area to qualify it as a buildable lot. The zoning board affirmed the permit, and the matter was appealed to the land court.zoning permit

In Reeve, the property at issue is accessible by a private right of way that branches off a larger avenue and continues onto the property. The primary question for the land court was whether an area consisting of a private way should be included in the lot size. Significantly, the property was subject to zoning regulations that required at least 90,000 square feet for a lot to be buildable. As a result, if that portion of the right of way is excluded from the lot area calculation, the lot would be considered undersized. However, if the private way is included, the lot would have sufficient area to be buildable.

Pursuant to the relevant zoning ordinance, the lot area occupied by the right of way may be counted toward the total area of the lot if it is for utility or conservation purposes, or held by or generally open to governmental agencies or the public. As a preliminary matter, the land court noted that the way was not used for conservation purposes. Although the way did contain privately installed water and sewer lines, it was not used primarily for utility services. Instead, the court found that its primary purpose is to provide access to the neighborhood for its residents and their invitees. Accordingly, the court narrowed the question to whether the private way is generally open to governmental agencies within the meaning of the ordinance.

The land court noted that although the right of way is marked with signs that read “Private Way,” the police and fire authorities have used the way, along with many other governmental vehicles. In addition, there are fire hydrants along the way. The court also explained that a plain reading of the ordinance indicates that a right of way simply needs to be generally physically accessible to governmental agencies to allow its area to be counted for the purpose of calculating lot size. As a result, whether the roads are private rather than public is immaterial. Given the evidence, the court held that the area is included in the lot size, and it affirmed the building permit.

If you want to build on your property or make a major change, you may need to seek approval from your local zoning board first. The Massachusetts land use attorneys at Pulgini & Norton can help you obtain a permit or variance, or represent you in any proceedings. We handle a range of property law matters, such as zoning issues, easements, foreclosures, mortgages, and more. To consult with one of our experienced attorneys, call Pulgini & Norton at (781) 843-2200 or contact us online.

More Blog Posts:

Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit, Massachusetts Real Estate Lawyer Blog, published August 14, 2015

Massachusetts Appeals Court Holds Abandoned Use Prevents Issuance of Building Permit, Massachusetts Real Estate Lawyer Blog, published May 9, 2016

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