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Massachusetts Plaintiffs Successfully Appeal Cease-and-Desist Order Regarding Their Private Airfield

Many local zoning bylaws regulate the use of residential property in a town or municipality.  In a November 7, 2016 decision, the Massachusetts Land Court considered whether a local bylaw prohibiting airfields was invalid.  The plaintiffs in the case were ordered by the town’s building inspector to cease and desist operations at the private airfield on their property, on the ground that such use was not permitted under the town’s zoning bylaw.  That order was upheld by the Stow Zoning Board of Appeals and subsequently appealed to the Land Court.plane

The plaintiffs’ property was used to operate an aviation museum and housed a number of vintage aircraft in working condition.  The property also contained an airfield registered with the Aeronautics Division as a non-commercial private restricted landing area.  Many of the neighboring landowners objected to the noise and disruption caused by landing aircraft and aviation events held on the plaintiffs’ property, which prompted Stow’s building inspector to issue the cease-and-desist order prohibiting the use of the airfield.

Under Massachusetts law, a municipality must obtain the approval of the Aeronautics Division of the Massachusetts Department of Transportation before regulating the use or operation of aircraft on airfields.  In the current case, the bylaw at issue prohibited airfields entirely, everywhere in the town.  Although airport and landing field use had previously been allowed in many of the town’s districts, Stow’s zoning bylaw was amended in 1982 to delete it as a permitted use.  The town applied for approval of the prohibition in its bylaw some time thereafter.  The Aeronautics Division, however, denied approval to the extent that the bylaw sought to regulate aviation activity within its boundaries.

On appeal, the plaintiffs argued that the cease-and-desist order must be vacated because the Aeronautics Division had not approved the bylaw on which the order was based, prohibiting airport and landing field uses.  The Land Court agreed, explaining that under Massachusetts law, when a municipality’s bylaw purports to regulate the use and operation of aircraft at an airport or restricted landing area, the bylaw cannot take effect until it has been submitted and approved by the Aeronautics Division.  The court observed that Stow’s zoning bylaw prohibits any use that is not expressly stated, and since the use or operation of aircraft on an airport or restricted landing area is not included in the bylaw, such use is therefore prohibited.  Lacking the required approval of the bylaw from the Aeronautics Division, the town could not enforce the prohibition on the plaintiff’s private airfield.  Accordingly, the Land Court struck down the cease-and-desist order against the plaintiffs.

The property lawyers at Pulgini & Norton can assist individuals in a variety of Massachusetts real estate transactions.  Our skilled attorneys provide guidance and legal representation in matters involving land use and zoning laws, sales and purchases of residential property, quiet title claims, and more.  To arrange a consultation with one of our attorneys, call Pulgini & Norton at (781) 843-2200 or contact us online.

More Blog Posts:

Massachusetts Appeals Court Allows Homeowners to Operate Commercial Horse Farm on Property, Massachusetts Real Estate Lawyer Blog, published October 26, 2015

Massachusetts Appeals Court Allows Plaintiff to Use Property as Noncommercial Landing Area, Massachusetts Real Estate Lawyer Blog, published May 16, 2016

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