Articles Posted in Land Use

Published on:

In the real estate market, the zoned use or designation of a parcel of property can significantly affect its monetary value.  In a March 8, 2018 land use case, the property at issue was estimated to be worth $250,000 if it was a buildable lot, but only around $85,000 if the property had to be kept vacant.  After a local zoning board ruled that a single-family home could be built on the lot, the matter was appealed to the Massachusetts Land Court.cabin

The plaintiff in the case jointly owned the property at issue with his siblings and also owned the neighboring parcel of land.  The land court opined that while a decision allowing for a single-family home would typically be desirable to the property owners, the lower value attached to a non-buildable lot would allow the plaintiff to buy out his siblings’ interest in the parcel.  Accordingly, he brought the subsequent appeal.

The primary question for the land court was whether a local by-law allowed for a new residence to be built on the property at issue.  The relevant section of the by-law provided that, with respect to lawful, non-conforming residential structures, certain alterations as identified in the by-law should essentially be issued an automatic permit.  Specifically, in order for a building permit to be issued, there must be a non-conforming single-family structure on the property, the proposed alteration must not constitute a change in use and comply with current setback, building coverage, and height requirements, and the existing structure must be located on a lot that complies with the same requirements or has insufficient frontage.

Continue reading →

Published on:

If you are opposed to a local government decision regarding land use, you may be able to bring an appeal if you are an aggrieved person as defined by law.  In a February 16, 2018 Massachusetts land use case, the Land Court considered whether a plaintiff had legal standing to challenge a local zoning board decision that authorized the development of a vacant lot abutting his backyard.building

In the case, the local planning board granted a special permit to the town authorizing the construction of a group home for veterans who are either homeless or at risk of becoming homeless, using the town’s property pursuant to a bylaw providing for affordable housing.  The plaintiff, who owned abutting property, appealed the decision, contending that the board exceeded its authority in granting the special permit.  The defendants asserted that the plaintiff lacked standing to challenge the special permit.

In Massachusetts, people with abutting land are entitled to notice of a zoning board’s hearings and have a rebuttable presumption that they are aggrieved persons.  Nevertheless, abutters have the burden of establishing standing so that, if a defendant offers enough evidence to rebut the presumption, the plaintiff must prove standing by putting forth credible and direct evidence of a particularized injury.  The analysis is whether the plaintiffs have sufficient evidence to show they will be injured or harmed by proposed changes to an abutting property, rather than whether they will be merely affected by the changes.  One way a defendant can rebut the presumption is by showing that the claims of injuries raised by the plaintiff are not interests that the Zoning Act is intended to protect.

Continue reading →

Published on:

In order to make certain improvements to your property, you may need approval from a local planning board.  If the process does not end in a favorable decision, you can appeal.  A February, 1, 2018 real estate case before the Land Court arose out of the plaintiffs’ efforts to develop their Massachusetts property.  They had applied to the town’s planning board, seeking approval of an improvement plan.  When the board denied their application, the plaintiffs appealed.  The case was eventually remanded back to the Land Court by the Massachusetts Court of Appeals, which reversed the ruling as to one of the plaintiffs’ claims.  Consequently, the matter was before the Land Court for a second time.fall

In the case, the only remaining issue to be resolved was the plaintiffs’ certiorari action. Certiorari is available if the proceeding is judicial or quasi-judicial, there are no other reasonably adequate remedies, and a substantial injury or injustice arose from the proceeding under review.  For the Land Court, the matter for review was the planning board’s decision.  The question for the court was whether or not there were grounds that a reasonable person would find proper to support the board’s decision.

The plaintiffs in the case sought approval of a plan that would allow their property to have adequate frontage on a certain way.  The application was submitted through the adequate access review process, which is used so that a way or street can be improved, without having to obtain definitive subdivision approval.  The limited circumstances in which these regulations may be applied require the way to meet the definition of a street under the by-laws, and the lot that has frontage on the way must have been in existence before subdivision control was adopted.  The plaintiffs were therefore required to demonstrate that both the way and the lot met the requirements provided.

Published on:

If someone files a frivolous real estate action against you, you may be able to recover your attorneys’ fees from defending against the claim. A December 18, 2017 case before the Massachusetts Land Court demonstrates this situation. In the case, a town sold a parcel of land to the defendants. Thereafter, the town filed an action against the defendants in land court, claiming that the parcel was subject to a restrictive covenant that only allowed for one residential lot.gavel

After evaluating the evidence, the land court ruled that there was no restrictive covenant created by reference in the deed to a subdivision plan, nor was an equitable servitude established without a sufficient writing. The land court also refused to rescind the conveyance on the ground that it exceeded the authority granted by the town in approving the sale of the parcel. The defendants subsequently filed a motion for attorneys’ fees, claiming that the court’s legal rulings led to a conclusion that the town’s claims were wholly insubstantial, frivolous, and not advanced in good faith.

In Massachusetts, a court may award reasonable attorneys’ fees and costs to a party if it determines that all or substantially all of the claims made by another party were wholly insubstantial, frivolous, and not advanced in good faith. A claim is not considered frivolous merely because the party was unsuccessful, but only when the court finds a total absence of evidentiary or legal support.

Continue reading →

Published on:

Restrictions, often known as covenants, bind landowners to specific provisions concerning their property.  In a December 5, 2017 Massachusetts real estate case, the Appeals Court considered whether certain restrictions on land had expired, or whether the restrictions had been legally and effectively extended.  The plaintiffs in the case filed an action seeking to enforce the restrictions against the defendants.  After the lower court concluded they had expired and ruled in favor of the defendants, the plaintiffs appealed.houses

The original developer of the land had executed and recorded an agreement providing protective covenants and easements for future owners of the lots in 1980.  Thereafter, the developer sold off the lots, subject to the agreement that limited construction on each lot to one single-family dwelling with a two- or three-car garage, for a period of 30 years.  The agreement also provided that the covenants may be amended or revoked by the agreement of two-thirds of all of the owners of the lots.

In 2001, more than two-thirds of the lot owners executed an agreement to extend the covenants until 2010, and they recorded the extension in 2002.  The agreement also provided that the covenants could be extended for further periods of not more than 20 years by the agreement of two-thirds of the lot owners.  When the plaintiffs filed their action to enforce the restrictions, the defendants argued in response that the restrictions expired in 2010, after 30 years.

Continue reading →

Published on:

Building a dwelling on your own property typically requires a special permit or approval from a local zoning board.  That decision can be appealed, as the plaintiffs appealed the denial of their building permit application in a November 2, 2017 Massachusetts zoning case before the Land Court.  The plaintiffs in the case had sought a building permit to construct a residence on a vacant lot. When their application was denied by the building inspector, they appealed to the local zoning board, which affirmed the decision. The plaintiffs then filed the present appeal to the Land Court.construction

On appeal, the plaintiffs argued that the lot was buildable, since it was created by the division of an existing lot in 1964 and retained its grandfather status under the zoning ordinance in effect at the time of the division. The zoning board asserted that the lot was unbuildable because the 1964 division was not approved pursuant to the Subdivision Control Law, and because the lot merged with another lot when it was placed in common ownership, losing any grandfather protection it had.

The Massachusetts Subdivision Control Law was enacted in 1953 and prohibits the division of land without approval of a plan by a local planning board. The term subdivision under the statute includes a tract of land divided into two or more lots, but it is subject to multiple exceptions, including lots with frontage on a public way. The plaintiff’s lot, which was created by division in 1964, was located on a public way and satisfied the statutory requirements, such that it was not considered a subdivision subject to additional subdivision laws. A division that is not a subdivision within the statute is known as an Approval Not Required or ANR plan, and the division does not require planning board approval.

Continue reading →

Published on:

In some situations, nearby property owners have the right to object to decisions made by local zoning boards.  These cases typically involve interpreting deeds and applying the real property laws of Massachusetts and local bylaws.  In an October 5, 2017 case, the Massachusetts Land Court considered a challenge brought by plaintiffs against a property management company after the local zoning board granted a variance to the defendants, allowing an otherwise prohibited two-family dwelling use on an undersized lot.  One of the issues for the court was whether the defendants took title to the lot subject to all easements, restrictions, and rights contained in the recorded deeds, or whether the restrictions had expired pursuant to law.house

The lot at issue in the case was originally part of a larger parcel that was conveyed in 1925 subject to several restrictions, one of which prohibited more than one single-family house and garage.  The parcel was thereafter subdivided into lots, which were sold individually and made subject to the original restrictions by deed.  The lot at issue was subsequently conveyed to various owners until the defendants acquired it in 2011.  The deed provided that the lot was subject to the same restrictions and easements as the prior deeds.  It did not provide any time limits on the restrictions.  The defendants sought a variance to authorize two-family dwelling use and deviate from minimum lot size requirements, which was granted by the local zoning board.

The plaintiffs in the case owned one of the other lots in the original parcel.  They argued that the deed restriction limiting the lot to single-family dwelling use remained valid and enforceable.  The defendants contended that the single-family use restriction originally imposed in 1925 had expired pursuant to Massachusetts G.L. 184 § 28.  The statute provides that any restriction imposed before 1962 is not enforceable after 50 years, unless a Notice of Restriction has been recorded to extend enforceability beyond the 50-year period.

Continue reading →

Published on:

Massachusetts state and local zoning laws generally have the most direct impact on how land can be used, but in some cases, constitutional issues may arise.  An October 18, 2017 case illustrates a Massachusetts land use matter challenged by town residents on the basis of the Massachusetts Constitution.  The local planning board had granted site plan approval to a company for the construction of a solar panel facility on a portion of the town’s property, which the company leased from the town.  The plaintiffs alleged that the property at issue was protected by the state constitution, and, therefore, a two-thirds vote in the Massachusetts Legislature was required before it could lease out the land.  The main issue in the case, therefore, was whether the town violated the Massachusetts Constitution by leasing town-owned land for use as a solar-powered electricity generation facility.solar panels

Article 97 of the Massachusetts Constitution protects the right of the people to the conservation, development, and utilization of the agricultural, mineral, forest, water, air, and other natural resources.  Lands and easements taken or acquired for these purposes cannot be used for other purposes, or otherwise disposed of except by laws enacted by a two-thirds vote of the Massachusetts Legislature.  The question for the court in such cases is whether the land was taken for a purpose consistent with Article 97, or later designated as such.  If land was taken for more than one use, or just incidentally serves the purposes enumerated in Article 97, the requirements of Article 97 do not apply.

In the case, the town had originally taken title to the property at issue pursuant to a deed, which provided that the land was conveyed to the town for the purposes of protection of water resources and other compatible purposes, including conservation and recreation.  The plaintiffs contended this language triggered the protections of Article 97.  The town argued that the language did not designate the property solely for the purposes protected by Article 97 because it may be used for “other compatible purposes.”

Continue reading →

Published on:

Land used by many members of the community, such as parks and other recreational public property, is subject to zoning regulations and other laws that may apply. In an October 2, 2017 Massachusetts real estate case, the Supreme Judicial Court considered an action brought against a city by its residents, who sought a restraining order to prevent construction of a new school on land that was used as a playground.land use

The land at issue had served as a public park for more than 60 years since it was created and formally approved by the city in 1957. In 1979, the city received a grant from the federal government to rehabilitate the playground in the park. The law authorizing the grant imposed a requirement that any property developed with grant assistance could not be converted to any use other than public outdoor recreation without the approval of the U.S. Secretary of the Interior. In 2011, the city council voted to transfer the playground from the parks and recreation department to its school department to construct a new elementary school on the land. A group of city residents commenced an action to halt the construction project, arguing that the land and the playground could not be used for any other purpose.

Article 97 of the Amendments to the Massachusetts Constitution provides that land and easements taken by eminent domain for conservation purposes cannot be used for any other purpose or disposed of without approval from the Legislature. Massachusetts courts have held that land dedicated as a public park is protected by Article 97, even if it was not taken by eminent domain or subject to a recorded restriction limiting its use. A city dedicates land as a public park under Article 97 when there is a clear and unequivocal intent to dedicate the land permanently as a public park, and when the public accepts such use by actually using the land as a public park. Since the municipal land at issue was dedicated as a public park, the court concluded that the land was protected by Article 97.

Continue reading →

Published on:

Massachusetts zoning laws regulate the manner and extent to which property can be used.  An August 18, 2017 Massachusetts real estate case brought before the Land Court illustrates a land use dispute involving neighboring homeowners.  One of the homeowners had requested that the town’s building commissioner take a zoning enforcement action against his neighbor, who operated a contracting business.  When the building commissioner denied his request, the homeowner appealed to the local zoning board of appeals, which found that the neighbor’s activities did violate use regulations.  The neighbor appealed the board’s decision to the Land Court.construction

The parties in the case lived in a Single Residence zoning district, where bylaws prohibited most commercial activities.  Despite the bylaws, the neighbor and his crew regularly parked numerous commercial vehicles at his property, gathered for meetings outside, and effectively used his yard as a contractors’ storage yard.  The homeowner who lived next door found these activities to be particularly disruptive, as did the rest of the neighborhood.

The Land Court found that many of the activities on the neighbor’s property were commercial in nature and prohibited under the bylaw.  The neighbor, however, argued that his property had, as an accessory use, a home occupation.  The local bylaw defined accessory use as that which is clearly subordinate and incidental to the principal building or use and, significantly, does not alter the character of the premises.  A customary home occupation, using one or more rooms for an office or studio, is a permissible accessory use under the bylaw, as long as no more than two people are regularly employed, the residential appearance and character of the premises are preserved, advertising on the premises is limited, and no sales are regularly conducted unless incidental to the accessory use.

Continue reading →

Contact Information