Articles Posted in Land Use

November 4, 2016, Massachusetts voters passed legislation authorizing the legalization, regulation, and taxation of recreational cannabis in Massachusetts.  The Massachusetts statute allows cities and towns to adopt their own ordinances and zoning bylaws imposing reasonable safeguards on the operation of marijuana establishments.  The plaintiffs in a March 7, 2019 case sought a declaration that a general bylaw enacted by their Town, banning all non-medical cannabis uses, was invalid.

The plaintiffs in the case had purchased land in the Town to build an indoor marijuana growing and processing facility shortly after the Massachusetts statute was enacted.  In May of 2018, the Town adopted an amendment to its zoning, bylaw by two-thirds vote, allowing certain recreational marijuana uses in agricultural, industrial, and business districts by special permit.

A group of citizens and neighboring property owners, unhappy with the amendment, sought to rescind it through two articles.  The first article was another amendment to reverse the bylaw, which failed to obtain the required two-thirds majority vote.  The second was a general bylaw to ban all non-medical cannabis uses within the Town, which passed by a majority vote.  The plaintiffs filed an action in Land Court, arguing that the second general bylaw was an improper attempt to amend a use that was already regulated in its zoning bylaw.

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Many of the old homes in Massachusetts were built before the current local zoning bylaws were enacted.  In many situations, the bylaws exempt these homes from a particular regulation by grandfathering them.  In a February 21, 2019 case, the Massachusetts Land Court considered whether a town’s zoning bylaws permanently grandfathered certain uses of a property that existed before the original bylaws were adopted.  The issue would determine whether or not the plaintiffs could build a new two-family dwelling on their lot.

The lot contained an existing two-family house, which had been built in the 1880s.  For many years, and at least since 1950, it had been used as a two-family residence.  In 2010, a fire swept through the house, leaving the building standing but ruining the interior.  Due to the damage, no one had resided in the house for years after the fire, although renovations had sporadically taken place.

The plaintiffs sought to raze the structure and construct a new two-family house.  The property, however, was located in a district zoned for single-family homes only.  While the local zoning bylaw had grandfathered the existing, nonconforming two-family house, in order to build a new non-conforming two-family structure on the property, the plaintiffs needed special approval.

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Whether a plaintiff is entitled to have a Massachusetts real estate claim decided by a jury generally depends on the type of action and the circumstances of the case.  In a February 20, 2019 opinion, the Appeals Court of Massachusetts addressed an issue that had not been definitively settled in Massachusetts: whether a land owner is entitled to have a regulatory taking claim decided by a jury.

The plaintiff in the case owned an unimproved lot in a residential subdivision, which she had inherited from her parents, who purchased it in 1975.  In 2012, the plaintiff prepared plans to construct a home on her lot.  She filed a notice of intent with the town conservation commission, seeking approval under the Massachusetts Wetlands Protection Act and the town’s bylaws concerning wetlands protection.

The commission denied the plaintiff’s variance requests, concluding that her plans did not comply with the requirements of the laws.  The plaintiff then filed an action in the Superior Court, asserting that the town’s application of its wetlands protection bylaw was essentially a taking of her property, and as such, required compensation under the U.S. and Massachusetts constitutions.

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Many homeowners do not realize that making structural changes to a nonconforming house usually involves a legal process for approval.  In a February 8, 2019 Massachusetts zoning  case, the Supreme Judicial Court examined a law that exempts preexisting nonconforming structures from local zoning ordinances and bylaws in some situations when they are extended or altered.

The defendants in the case owned the second floor condominium unit in a two-unit house.  They sought to modify the roof of the house and add a dormer, thereby providing an additional by 677 square feet of living space.  It would also increase the preexisting nonconforming floor ratio area of the house, which presently exceeded the maximum allowed under the local bylaw.  As such, the defendants were required to apply for a special permit from the zoning board.

Many of the defendants’ neighbors, including the plaintiffs, appeared at the public hearing to oppose the permit.  The defendants presented evidence that the majority of the houses on their street already had partial or full third stories and were taller than the defendants’ existing building.  Town officials also noted that the proposed project would make the house appear more consistent, both in height and in design, with the others on the street.

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If you are seeking to build your new home on property located on a flood plain or watershed, local Massachusetts zoning  laws may significantly affect your plans.  In a February 5, 2019 real estate case, the property owners had difficulty obtaining approval to construct a single-family home on their lot.  Although a local zoning board had granted them a special permit, the owners of the adjacent property had appealed that decision, and it was reversed by the Superior Court.  The property owners subsequently sought review of the matter from the Appeals Court of Massachusetts.

The lot at issue in the case was located in the town’s flood plain and watershed district.  Under the local by-law, a special permit may be granted for land within a flood plain and watershed district if the applicant proves that the land is not, in fact, subject to flooding, and has suitable drainage conditions for the proposed use.  Flooding as used in the by-law means in the sense that water rises and overflows over normally dry land.

The local zoning board found that the lot was subject to flooding.  The board also considered whether development of the proposed dwelling would be inconsistent with the purposes of the by-law, and whether the dwelling would violate public policy concerns.  Determining that it did not violate public policy concerns, the board allowed the special permit.  The Superior Court reversed, concluding that under the by-law, the board could not grant a special permit for a lot subject to flooding in fact, notwithstanding any policy considerations.

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Constructing or modifying a home often involves land use regulations, which may be navigated with the assistance of a Massachusetts real estate attorney.  In a January 31, 2019 case, the Appeals Court of Massachusetts reviewed a decision from a local conservation commission denying the plaintiffs’ request to build a single-family home on a lot.  The decision was affirmed by the Superior Court before the plaintiffs sought additional review from the Appeals Court.

In 2007, the plaintiffs in the case had filed a notice of intent with the commission, requesting an order of conditions to build their house.  After a public hearing in 2009, the commission denied the plaintiffs’ request, concluding that it did not meet the requirements of the Massachusetts Wetlands Protect Act, nor the town’s wetlands protection bylaw and regulations.  Over the next several years, the issue was appealed and remanded back to the commission for reconsideration.  Ultimately, the commission denied the plaintiffs’ request for a second time for failing to meet the standards required under land use laws.

On appeal, the plaintiffs argued that there was substantial evidence to grant the notice of intent, and that the commission was required to allow a waiver under the wetlands bylaw and the regulations.

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New construction and major changes to property may have an unwelcome impact on other homeowners.  Whether or not a person can formally contest a proposed change, however, depends on if they have standing to bring a legal action.  The question of standing was one of the main issues in a November 15, 2018 Massachusetts real estate case before the Court of Appeals.

The defendants in the case had received a variance from the local zoning board, which allowed them to go forward with the proposed construction of a home on a vacant lot they owed.  The vacant lot was adjacent to an existing house, also owned by the defendants.  The plaintiffs’ property abutted and was adjacent to the vacant lot on the other side.  In securing the variance, the proposed house would be closer to the plaintiffs’ property than otherwise allowed.

The plaintiffs filed an action in Land Court challenging the variance.  Ultimately, the Land Court concluded that the defendants’ two lots had merged, and as such, a variance could not issue to allow construction of a second home on the property.  The defendants appealed, arguing that the plaintiffs lacked standing to bring the action.

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Resolving zoning violations may require compromise in unusual situations.  In a November 9, 2018 Massachusetts real estate case, the Land Court was tasked with deciding the fate of a house that was constructed in violation of the local zoning bylaws.  The plaintiff in the case owned a single family residence across the street from the house at issue.  The house had been constructed despite the plaintiff’s objections, which were timely filed.  The defendants, with full knowledge of the pending litigation, purchased and moved into the house with their children.

It was undisputed that neither the building permit for construction of the house, nor the subsequent certificate of occupancy, should have been granted.  The lot on which the house was built did not meet the depth requirement, as it was more than fifty feet short of the 125 feet demanded by law.  As such, the defendants applied for a variance, which was granted by the local zoning board.  The lot, however, did not meet the criteria for such a variance.  The plaintiff subsequently challenged the variance, and a trial was required to determine whether the plaintiff had standing to do so.

Standing requires the plaintiff to show that he has or will suffer an injury related to an interest that is protected by the applicable zoning law, and which is special and different from the general concerns of the larger community.  The Land Court ruled that the plaintiff did have standing to challenge the variance, but only from a single impact.  Namely, the headlights shining in the windows of his home at night from cars exiting the defendants’ driveway.

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Owners of vacant parcels of land often seek to construct single-family homes on the empty lots.  In most situations, Massachusetts property owners will need to obtain a permit from the local zoning authority to build a new home.  The plaintiffs in a September 27, 2018 case sought approval to build a single-family dwelling on each of the two vacant lots they owned.  The building inspector denied the permits, finding that the two lots lacked legal frontage, and therefore, were not buildable without a variance.  When the building inspector’s decision was upheld by the local zoning board, the plaintiffs appealed to the Massachusetts Land Court.

The lots owned by the plaintiffs were bordered by roads on their east and west property lines.  Under the local bylaw, a house lot must have at least 150 feet of frontage to a qualified way between its side boundary lines.  The primary issue in the case was whether one of the roads bordering the plaintiffs’ lots qualified as a way that would allow them to satisfy the frontage requirement for a lot with a house.

Massachusetts law defines a way that qualifies for frontage as: (1) a public way or a way that is maintained and used as a public way; (2) a way shown on an approved plan in accordance with the subdivision control law; or (3) a way in existence before the subdivision control law became effective, which provides for the traffic needs of the abutting land and for the installation of municipal services to serve the land.

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