Articles Posted in Land Use

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Before someone can challenge the validity of a permit issued to another landowner, that person must have legal standing.  In a June 12, 2017 case, the issue for the Massachusetts Land Court was whether a plaintiff who lived across from the defendant’s property had standing to appeal a special permit granted to the defendant by the local zoning board.  The special permit allowed the defendant to construct a four-unit residential building in a zone where three-unit buildings are allowed as of right and where larger buildings require a special permit.unfinished building

The defendant in the case was a real estate developer that purchased property located across the street from the plaintiff’s house.  The defendant sought a special permit to tear down the existing single-family home on the property and replace it with a single structure containing four residential units.  After the zoning board granted the permit, the plaintiff appealed, alleging that she would  be negatively affected by traffic and fire vehicle access that will result from the proposed development.

In order to have standing to challenge the defendant’s zoning permit, the plaintiff must be “aggrieved” as defined by law.  People entitled to notice of the permit are entitled to a rebuttable presumption that they are aggrieved.  In the case, the plaintiff was an abutter to an abutter within 300 feet of the defendant’s property, and as a result, she was entitled to the presumption that she is aggrieved.

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If a zoning board decision affects other adjoining or nearby landowners, they may be able to appeal the ruling.  The Massachusetts Land Court reviewed a case on June 7, 2017 in which the defendants had obtained approval from the local zoning board to tear down a lawfully nonconforming garage on their property and replace it with a larger, single-family home.  The plaintiffs, who lived on a parcel of land abutting the defendants’ property, appealed the zoning board’s grant of a special permit and variances authorizing the plan.construction

After determining that the plaintiffs had standing to bring the appeal, the land court turned to the question of whether the special permit had been properly issued.  The defendants in the case requested relief from the off-street parking requirements of a local ordinance, which required a 20-foot driveway to accompany parking facilities within the ground floor of a structure.  Pursuant to local laws, the zoning board is authorized to waive this requirement by issuing a special permit, if the board finds that the reduction is not inconsistent with public health and safety or that the reduction promotes a public benefit.

After reviewing the zoning board’s written determination, the land court found that, despite the lack of an explicit finding that the defendants’ proposal was not inconsistent with public health and safety or that the reduction promotes a public benefit, the standard was implicitly applied when the zoning board considered traffic flow and safety and stated that it did not foresee the location and the size of the site as having a significant negative impact.  The land court concluded that the board employed an evaluation that was functionally identical to that mandated by the ordinance regarding parking waivers.

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Before making changes to an existing building or constructing a new one, property owners may have to obtain approval from the local government. In a May 30, 2017 case, the Massachusetts Land Court reviewed a zoning board decision granting a variance to the defendants for the construction of a new house on their vacant lot. The plaintiffs appealed the variance, which would allow the defendants’ house to be 15 feet closer to the plaintiffs’ property than permitted by the setback.delta

The defendants in the case owned two lots that were conveyed to them by a single deed in 1986. The defendants had built a house on one of the lots, while the other lot remained undeveloped. The plaintiffs in the case resided in a house located next to the defendants’ vacant lot. The vacant lot was oddly configured, making improvement of the property difficult due to its unique shape and the presence of wetlands. The zoning board ultimately granted the variance, finding that these factors created a hardship to the defendants that justified relief in order for them to develop the property. On appeal, the plaintiffs claimed that the proper requirements for issuing a variance were not met, and as a result of the variance, they would suffer from increased density, reduction in privacy, loss of view, decrease in property value, safety infringements, and instability to their property.

The primary issue for the land court was whether the two lots owned by the defendants had merged for the purposes of zoning, which would result in the loss of grandfathered status and subject the property to the contiguous upland requirement in order to be buildable. The merger doctrine provides that adjoining land in common ownership must be added to nonconforming land in order to bring it into conformity or reduce the nonconformity. The grandfather provision at issue in the case exempted certain lots from increases in lot area, frontage, width, yard, or depth requirements, protecting owners whose lots previously conformed with zoning requirements. However, the exception was not available to lots held in common ownership with an adjoining lot, which may be combined, or merged, to reduce or eliminate the nonconformity. The bylaw provided that lots held in common ownership are entitled to grandfathering for five years after the effective date of a zoning change, if certain requirements are met, after which the lots are combined or merged to reduce nonconformity.

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In some cases, home owners may need to seek approval from local officials before making significant changes to their properties. In a May 5, 2017 opinion, the Massachusetts Land Court reviewed a zoning board decision rejecting a building permit application filed by the plaintiff.  The key question for the court was whether a vacant, dimensionally non-conforming parcel of land merged for zoning purposes with an adjacent property, therefore rendering the vacant parcel separately unbuildable.construction

The vacant parcel at issue was held in trust, with the plaintiff and her mother as trustees.  The plaintiff also owned, in her individual name, an adjacent property with an existing house. The plaintiff filed a building permit application to construct a single-family home on the vacant parcel, which was denied on the ground that it was under common control with the adjacent parcel.

In Massachusetts, the doctrine of merger provides that adjacent lots in common ownership will normally be treated as a single lot for zoning purposes in order to minimize non-conformities.  Once merger occurs, it cannot be undone.  In other words, a person owning adjoining lots may not artificially divide them in order to restore old record boundaries and obtain a grandfather non-conforming exemption.  Instead, to preserve the grandfather non-conforming exemption, the lots must retain their separate identity.

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Property owners may apply for special permits allowing them to construct non-conforming buildings or renovations on their land.  In some cases, the grant of such a permit may be challenged by abutting neighbors.  The Massachusetts Land Court recently reviewed a zoning board decision in an April 6, 2017 appeal.  The defendant in the case was granted a special permit to replace an existing single-family house on his property with a much larger two-story house and another freestanding accessory building with a three-car garage.  The plaintiffs, who owned abutting property near the defendant, appealed the decision to the land court.barn

The case was complicated by the fact that there was another single-family house on the defendant’s property.  In 1945, a zoning by-law was enacted that made it unlawful to have two dwellings on one residential lot.  However, the 1945 by-law also provided that legally pre-existing nonconforming structures and uses could be continued and may be expanded if a special permit is granted.  The issue for the land court was whether the two houses, both of which were once part of the same greenhouse, were, in fact, each used as a separate single-family residence prior to 1945.  If they were not, the special permit would be invalid.

The land court found that the two existing houses on the defendant’s property were dwellings because they are detached buildings separated from other structures and designed to accommodate a residence for the use of one or more individuals.  Accordingly, its use was nonconforming under the 1945 by-law and could be continued only if both of the houses existed lawfully before the zoning by-law was enacted.  After reviewing the evidence of record, the land court determined that the second dwelling did not exist until after the enactment of the 1945 zoning by-law.  As a result, the land court held that it was not a lawful pre-existing, nonconforming use and may not be continued.

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Gaining title to property through adverse possession generally requires that certain legal elements be proven in court. The Massachusetts Land Court issued a decision on April 6, 2017, discussing the criteria for acquiring ownership in such a manner. In the case, the plaintiff claimed adverse possession of an 8,600-square foot, partially wooded rectangular parcel of land owned by the defendant, a real estate developer. The plaintiff alleged that his predecessor in title and he mowed and maintained the area in question from 1978 to the time of the present dispute, and, accordingly, he acquired title to that section of the defendant’s land by adverse possession.

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In Massachusetts, title by adverse possession can be acquired only by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse for 20 years. The burden of proving each element falls upon the party claiming title by adverse possession, i.e., the plaintiff in the case. To prove actual use, the plaintiff must establish changes upon the land that constitute sufficient control and dominion over the area, or, in other words, acts similar to those that are usually and ordinarily associated with ownership. Open and notorious use puts the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right. In addition, the plaintiff must be able to show a lack of consent from the true owner, rather than mere permission.

In considering the plaintiff’s claim, the Land Court explained that the particular acts that would be consistent with ownership and provide notice vary depending on the features of the land in dispute. In the case, part of the area claimed by the plaintiff contained numerous trees, with its surface covered with brush, weeds, and forest growth. The court found that the plaintiff’s intermittent actions of dumping leaves and grass clippings onto the wooded portion of the land was not evidence of actual use but instead the actions of a landowner attempting to place unwanted debris beyond the bounds of his own property.

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Whether or not a property owner can challenge a zoning decision regarding another property depends on his or her standing.  The Massachusetts Land Court decided a March 13, 2017 case in which the defendants argued that the plaintiff lacked standing to object to a local zoning board decision.  The court provided a thorough explanation of the issues and requirements relating to injury and standing.lighthouse-1226471-639x852-1-225x300

The case arose out of the proposed construction of a two-story addition that would be used to store the archives of a historical society.  The historical society sought a variance from the zoning board to construct its addition outside of the side-yard setback allowed by local regulations.  The plaintiff owned and resided at a property across the street from the historical society building, approximately 240 feet from the site of the proposed addition.  When the zoning board granted the variance, the plaintiff filed a complaint appealing the decision.

Under the Massachusetts Zoning Act, only a person aggrieved has standing to challenge a decision of a zoning board of appeals.  Abutters, landowners directly opposite on any public or private street or way, and abutters to abutters who are within three hundred feet of the property line of the petitioner are entitled to notice of zoning board hearings and have a rebuttable presumption that they are aggrieved by a decision concerning another property.  The defendant may rebut the presumption by showing that the plaintiff’s claims are not interests that the Zoning Act is intended to protect.

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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.

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Individuals may have the right to appeal a decision from their local zoning board if the matter directly affects them or their property.  The Massachusetts Land Court reviewed such an appeal in a January 3, 2017 case, in which the plaintiffs objected to a decision of the Zoning Board of Appeals.  The Board had granted a special permit allowing the defendants to rebuild a deteriorated garage on their property.  By issuing the permit, the Board approved a proposed structure that was higher than the original and in a different location of the defendants’ property.shed

On appeal, the Land Court first addressed the issue of standing by determining whether the plaintiffs had suffered some infringement of their legal rights.  The plaintiffs asserted standing based on noise, density, harm to the salt marsh and related flooding, diminished views and vistas, and diminution in value of their property.  After reviewing the evidence, the court concluded that the plaintiffs had standing based only on an increase in density but not on the other grounds asserted.  In particular, the court found that the new garage’s increase in height and the movement of residential activity closer to the plaintiffs’ property were sufficient to provide standing based on an increase in density.  The court went on to rule against the plaintiffs’ procedural arguments, holding that the Board’s actions in approving and issuing the special permit were not in error.

Finally, the court reviewed whether the special permit was granted based on an unreasonable, capricious, or arbitrary exercise of judgment in applying the land use regulation to the facts. Pursuant to the local bylaws, special permits are only granted if the applicant demonstrates that no undue nuisance, hazard, or congestion will be created, and there will be no substantial harm to the established or future character of the neighborhood or town.  In addition, the proposal must not be substantially more detrimental to the neighborhood, zoning district, or town.

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Some residential real estate deeds include provisions that limit or dictate what can be done with the property, often known as restrictive covenants.  In a recent case (Mass. Land Ct. Jan. 25, 2017), the Massachusetts Land Court considered whether an option to repurchase land, styled as a restrictive covenant, could be exercised after a substantial period of time.houses

The plaintiff in the case was a subdivision developer that had sold several lots to residential purchasers, including the defendants, for the purpose of building homes on the lots.  The plaintiff recorded a Declaration of Restrictive Covenants that applied to all of the subdivision lots, which contained a provision that allowed the plaintiff to repurchase any lot at the original sale price if home construction had not commenced within a year of the purchase.

In 2005, the defendants’ parents purchased a subdivision lot from the plaintiff, and a year passed without any construction.  They subsequently conveyed the lot to the defendants, who also failed to build on the lot.  In 2015, the plaintiff demanded that the defendants re-convey the property to the plaintiff, pursuant to the covenant contained in the Declaration.  The plaintiff filed an action with the Land Court, claiming its right to exercise an option to re-purchase the lot as a result of the defendants’ failure to commence construction within a year after their purchase of the property.

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